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UNIVERSITY  OF  CALIFORNIA. 

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THE 


MILITARY  LAWS 


OF  THE 


UNITED   STATES. 

,  eta  , 


Prepared,  tinder  the  direction  of  the  Honorable  Daniel  S.  Lamont,  Secretary  of  War, 
by  Lieutenant-Colonel  George  B.  Davis,  Deputy  Judge-Advocate- 
General,  United  States  Army. 


OP  THE 

UNIVERSITY 


WASHINGTON: 

GOVERNMENT    PRINTING    OFFICE, 
18.97. 


WAR  DEPARTMENT, 
Document  No.  64. 


TABLE  OF  CONTENTS. 


Page. 
CHAPTER  I.  The  Executive 5-8 

II.  Provisions  applicable  to  the  several  Executive  Departments. . .        9-25 

III.  The  Department  of  War 26-32 

IV.  Provisions  Applicable  to  Several  Classes  of  Officers 33-55 

V.  The  Department  of  the  Treasury;  the  Accounting  Officers 56-96 

VI.  The  Post-Office  Department 97-100 

VII.  The  Department  of  Justice;   Habeas  Corpus;   the    Court  of 

Claims " 101-125 

VIII.  The  Department  of  the  Navy ;  the  Marine  Corps 126-128 

IX.  The  Department  of  the  Interior 129-133 

X .  The  Revised  Statutes ;  the  Statutes  at  Large ;  the  Army  Regula- 
tions ;  the  Army  Register 134-149 

XI.  The  Military  Establishment;  general  provisions  of  organization.  150-153 
XII.  Rank  and  command;  tactical  and  territorial  organizations 154-158 

XIII.  The  Staff  Departments;  general  pro  visions;  disbursing  officers.  159-180 

XIV.  The  Adjutant-General's  Department 181-182 

XV.  The  Inspector-General's  Department 183-185 

XVI.  The  Judge- Advocate-General's  Department 186-187 

XVII.  The  Quartermaster's  Department 188-204 

XVIII.  The  Subsistence  Department 205-213 

XIX.  The  Pay  Department 214-239 

XX.  The  Medical  Department 240-249 

XXI.  The  Engineer  Department 250-304 

XXII.  The  Ordnance  Department 305-321 

XXIII.  The  Signal  Department  ....'. 322-326 

XXIV.  The  Record  and  Pension  Office 327-328 

XXV.  Post  and  Regimental  Chaplains 329-330 

XXVI.  Commissioned  officers 331-350 

XXVII.  Brevets;  Medals  of  Honor;  Certificates  of  Merit;  Foreign  Deco- 
rations    351-354 

XXVIII.  Enlisted  Men 355-377 

XXIX.  Troops  of  the  Line '. 378-380 

XXX.  The  Military  Academy ;  The  Service  Schools 381-400 

XXXI.  Contracts  and  Purchases 401-422 

XXXII.  The  Public  Lands;  Military  Reservations;  Military  Posts 423-442 

XXXIII.  The  Public  Property 443-449 

XXXIV.  The  Militia;  the  Militia  of  the  District  of  Columbia;  the  Terri- 

torial Militia 450-478 

XXXV.  Military  tribunals ;  Courts-Martial;  Courts  of  Inquiry 479-527 

XXXVI.  Citizenship  and  Naturalization 528-536 

XXXVII.  The  Indians ;  Indian  agents ;  the  Indian  country 537-568 

XXXVIII.  Employment  of  military  force;  (1)  in  resisting  invasion ;  (2) 
in  suppression  of  insurrection ;    (3)    in  support  of  the  civil 

authority 569-600 

3 


4  TABLE    OP    CONTENTS. 

Pago, 

CHAPTER  XXXIX.  Pensions 601-643 

XL.  The  Soldiers'  Home 644-650 

XLI.  The  National  Home  for  Disabled  Volunteer  Soldiers 651-662 

XLII.  The  Government  Hospital  for  the  Insane 663-664 

XLIII.  National  Military  Parks;  The  Yellowstone  Park ;  Forest 

Reservations 665-694 

XLIV.  National  Cemeteries 695-699 

XLV.  Flag  and  Seal  of  the  United  States 700-701 

APPENDIX. 

I.  The  Articles  of  War 702-757 

II.  Treaties  and  conventions 758-799 

The  Geneva  Convention 758-774 

Convention  with  Mexico 775-778 

Instructions  for  the  Government  of  the  Armies  of  the  United  States  in 
theField .  779-799 


CHAPTER    I. 


THE  EXECUTIVE. 


Par. 

1.  The  Executive  power. 

2.  Power    of   the    President    as 

Commander  in  Chief.  The 
Cabinet.  The  pardoning 
power. 


Par. 

3.  Term  of  office. 

4.  Treaty   making  power. 

pointing  power. 


Ap- 


1.  The  executive  power1  shall  be  vested  in  a  President    The  executive 

power.      Consti- 

of  the  United  States  of  America.     He  shall  hold  his  office ^tion,  Art.  n, 
during  the  term  of  four  years.     *     *     *     Constitution,  Art. 
II ,  sec.  1. 

2.  The  President  shall  be  Commander  in  Chief  of  the  p ^edrenft  *jj 
Army  and  Navy  of  the  United  States  and  of  the  militia  of  gh°.»;mander-in- 
the  several  States,  when  called  into  the  actual  service  of   Sec.2,  t&id. 
the  United  States,2  he  may  require  the  opinion,  in  writing, 

of  the  principal  officer  in  each  of  the  Executive  Depart-    The  cabinet, 
nients  upon  any  subject  relating  to  the  duties  of  their 
respective  offices,  and  he  shall  have  power  to  grant  re- _  The  pardoning 
prieves  and  pardons  for  offenses  against  the  United  States, 


power. 


executed,  but  ne  is  not  obliged  to  execute  them  nimselt.  4  Upm.  Att.  (Ten., 
Williams  v.  U.  S.,  12  Pet.,  524, 610.  The  President  speaks-and  acts  through  the  h 
of  the  several  Departments  in  relation  to  subjects  which  appertain  to  their  respec 
duties.  Wilcox  v.  Jackson,  13  Pet.,  498,  513;  Wolsey  v.  Chapman,  101  U.  S., 


]The  executive  power. — The  executive  power  is  vested  in  a  President,  and,  as  far 
as  his  powers  are  derived  from  the  Constitution,  he  is  beyond  the  reach  of  any  other 
Department,  except  in  the  mode  prescribed  by  the  Constitution  through  the  impeach- 
ing power.  Kendall  v.  U.  S.,  12  Pet.,  524, 610 ;  Morbury  v.  Madison,  1  Cranch,  137, 166. 

Execution  of  the  laws. — The  President  is  required  to  see  that  the  laws  are  faithfully 
executed,  but  he  is  not  obliged  to_execute  them  himself.  4  Opin.  Att.  Gen.,  515; 

the  heads 
spective 
S.,  755; 

Runkle  v.  U.  S.,  122  U.  S.,  543,  557.  As  a  general  rule,  the  direction  of  the  President 
is  presumed  in  all  instructions  and  orders  issuing  from  the  competent  Department. 
7  Opin.  Att.  Gen.,  453.  In  a  matter  which  the  law  confides  to  the  pure  discretion  of 
the  Executive,  the  decision  of  the  President,  or  proper  head  of  Department,  on  any 
question  of  fact  involved  is  conclusive,  and  is  not  subject  to  review  by  any  other 
authority  in  the  United  States.  C  Opin.  Att.  Gen.,  226.  Marbury  v.  Madison,  1  Cr., 
137,  166. 

^Powers  as  Commander  in  Chief.— As  Commander  in  Chief  he  is  authorized  to 
direct  the  movements  of  the  land  and  naval  forces  placed  by  law  at  his  command, 
and  to  employ  them  in  the  manner  he  may  deem  most  effectual  to  harass  and  con- 
quer and  subdue  the  enemy.  He  may  invade  the  hostile  country  and  subject  it  to 
the  sovereignty  and  authority  of  the  United  States.  But  his  conquests  do  not 
enlarge  the  boundaries  of  this  Union,  nor  extend  the  operations  of  our  institutions 
and  laws  beyond  the  limits  before  assigned  to  them  by  the  legislative  power.  Flem- 
ing ?'.  Page,  9  How.,  603,  615.  The  power  of  command  and  control  reserved  by  the 
Crown  was  placed  by  the  Constitution  in  the  hands  of  the  President.  Street  v.  U.  S., 
24  C.  Cls.  R.,  230;  25,  ibid,  515,  113  U.  S.,  299. 

Tower  to  establish  rules  and  regulations. — The  power  of  the  Executive  to  estab- 
lish rules  and  regulations  for  the  government  of  the  Army  is  undoubted  •  *  *  « 
The  power  to  establish  implies,  necessarily,  the  power  to  modify  or  repeal,  or  to 
create  anew.  U.  S.  v.  Eliason,  16  Pet.,  291, 301.  The  Army  Regulations,  when  sanc- 
tioned by  the  President,  has  the  force  of  law  because  it  is  done  by  him  by  the 
authority  of  law.  U.  S.  v.  Freeman,  3  How.,  556,  567. 

May  form  military  governments  in  occupied  territory.— As  an  incident  of  the 
exercise  of  belligerent  rights,  the  President  may  form  military  and  civil  govern- 


6  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

except  in  cases  of  impeachment.1  Constitution,  Art.  II, 
sec.  2. 

Term  of  office.     3.  The  term  of  four  years  for  which  a  President  and 
'  Vice-President  shall  be  elected  shall  in  all  cases  commence 
on  the  4th  day  of  March  next  succeeding  the  day  on  which 
the  votes  of  the  electors  have  been  given. 

4-  He  sha11  have  power,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  to  make  treaties,  provided  two-thirds 
power1*  °L-nting°f  ^e  Senators  present  concur:  and  he  shall  nominate, 

ments  in  the  territory  of  the  enemy  occupied  by  the  armies  of  the  United  States. 
Cross  v.  Harrison,  16  How.,  164,  190,193.  The  Grapeshot,  9  Wall.,  129,  132.  Ho  may 
also  institute  temporary  governments  within  insurgent  districts  occupied  by  the 
national  forces.  Texas  v.  White,  7  Wall.,  700,  730. 

May  establish  courts  in  occupied  territory— Limitation.— The  courts  established 
or  sanctioned  in  Mexico,  during  the  war,  by  the  commanders  of  the  United  States 
forces,  were  nothing  more  than  the  agents  of  the  military  power,  to  assist  it  in  pre- 
serving order  in  the  conquered  territory,  and  to  protect  the  inhabitants  in  their 
persons  and  property,  while  it  was  occupied  by  the  American  armies.  They  were 
subject  to  the  military  power,  and  their  decisions  were  under  its  control  whenever 
the  commanding  officer  thought  proper  to  interfere.  Neither  the  President  nor  any 
military  officer  can  establish  a  court  in  a  conquered  country,  and  authorize  it  to 
decide  upon  the  rights  of  the  United  States,  or  of  individuals  in  prize  cases,  nor  to 
administer  the  laws  of  nations  Jecker  v.  Montgomery,  13  How.,  498,  515.  The 
Grapeshot,  9  Wall.,  129.  132. 

For  authority  to  employ  secret  agents  in  time  of  war,  see  Totten  v.  U.  S.,  92  U.  S., 
105,  107.  For  powers  and  duties  of  the  Executive  in  connection  with  the  Army,  the 
Militia,  and  the  Army  Regulations,  etc.,  gee  the  chapters  so  entitled. 

1The  pardoning  power. — A  pardon  is  an  act  ot  grace  proceeding  from  the  power 
intrusted  with  the  execution  of  the  laws,  which  exempts  the  individual  on  whom  it 
is  bestowed  from  the  punishment  the  law  inflicts  for  a  crime  he  has  committed.  It 
is  the  private  though  official  act  of  the  executive  magistrate,  delivered  to  the  indi- 
vidual for  whoso  benefit  it  is  intended,  and  not  communicated  officially  to  the  court. 
U.  S.v.Wilson,  7  Pet.  150,  161.  Coke,  3d  Inst.  233.  The  power  which  the  Consti- 
tution confers  upon  the  President  to  grant  pardons  can  not  bo  controlled  or  limited, 
in  any  manner,  by  Congress.  Ex  parto  Garland,  4  Wall.,  333,  380;  U.  S.  v.  Klein, 
13  Wall.,  128,  147;  4  Opin.  Att.  Gen.,  458. 

Delivery  and  acceptance. — The  pardon  is  a  private  though  official  act.  It  ist  offi- 
cial in  that  it  is  the  act  of  the  Executive;  it  is  private  in  that  it  is  delivered  to  the 
individual,  and  not  to  the  court.  It  must  be  pleaded,  or  brought,  officially  to  the 
knowledge  of  the  court,  in  order  that  the  court  may  give  it  effect  in  any  given  case. 
There  is  nothing  peculiar  in  it  to  distinguish  it  from  other  acts.  It  is  a  deed  to  tin; 
validity  of  which  delivery  is  essential,  and  the  delivery  is  not  complete  without 
acceptance.  It  may  be  rejected  by  the  person  to  whom  it  is  tendered  and,  if  rejected, 
there  is  no  power  in  the  court  to  force  it  upon  the  individual.  U.  S.  v.  Wilson,  7 
Pet.,  150. 

Effects. — Subject  to  exceptions  therein  provided,  a  pardon  by  the  President  restores 
to  its  recipient  all  rights  of  property  lost  by  the  offense  pardoned,  unless  the  prop- 
erty has,  by  iudicial  process,  become  vested  in  other  persons.  Osborn  v.  U.  S.,  91 
U/S.,  474;  5  Opiu.  Att.  Gen.  (2d  ed.),  532. 

Power  to  mitigate  and  commute. — The  President  may,  by  an  exercise  of  the  par- 
doning Tiower,  mitigate  or  commute  a  punishment  imposed  by  any  court  of  the  United 
States.  Ex  parte  Wells,  18  How.,  307 ;  In  re  lloss,  140  U.  S.,  453.  In  mitigating  the 
sentence  of  a  naval  court-martial,  the  President  may  substitute  a  suspension  for  a 
term  of  years  without  pay,  for  an  absolute  dismissal  from  the  service;  as  suspension 
is  but  an  inferior  degree  of  the  same  punishment.  1  Opin.  Att.  Gen.,  433, 

Conditional  pardons.— The  language  of  the  Constitution  is  such  that  the  power  of 
the  President  to  pardon  conditionally  is  not  one  of  inference,  but  is  conferred  in 
terms,  the  language  being  "to  grant  reprieves  and  pardons"  which  includes  abso- 
lute as  well  as  conditional  pardons.  Under  this  power  the  President  can  grant  a 
conditional  pardon  to  a  person  under  sentence  of  death,  offering  to  commute  that 
punishment  into  an  imprisonment  for  life.  If  this  is  accepted  by  the  convict,  he  has 
no  right  to  contend  that  the  pardon  is  absolute  and  the  condition  of  it  void.  Ex 
parto  Wells,  18  How.,  307,  Osborn  v.  U.  S.,  91  U.  S.,  474;  U.  S.  v.  Wilson,  7  Pet,,  150. 
When  a  pardon  is  granted  with  conditions  annexed,  the  conditions  must  be  performed 
before  the  pardon  is  of  any  effect.  Waring  v.  U.  S.,  7  C.  Cls.  Ii.,  501.  One  who 
claims  the  benefit  of  a  pardon  must  bo  held  to  strict  compliance  with  its  conditions. 
Haym  v.  U.  S.,  7  C.  Cls.  K.,  443;  Scott  v.  U.  S.,  8  ibid.,  457.  The  condition  annexed 
to  a  pardon  must  not  be  impossible,  unusual,  or  illegal ;  but  it  may,  with  the  consent 
of  the  prisoner,  bo  any  punishment  recognized  by  the  statutes,  or  by  the  common 
law  as  enforced  by  the  State.  Lee  v.  Murphy,  22  Grat.  (Va.),  789. 

Time  of  exercise.— The  President  of  the  United  States  has  the  conditional  power  to 
pardon  as  well  before  trial  and  conviction  as  afterwards ;  but  it  is  a  power  only  to  be 
exercised  with  reserve  and  for  exceptional  considerations.  6  Opin.  Att.  Gen.,  20;  1 
ibid.,  341;  2  ibid.,  275;  5  ibid.,  687;  Ex  parte  Garland,  4  Wall.,  333;  Dominick  v. 
Davidson,  44  Ga.,  457;  5  Blair  v.  Com.,  25  Grat.  (Va.),  850.  It  is  competent  for  the 
President  to  grant  a  pardon  after  the  expiration  of  the  term  of  sentence,  thereby 
relieving  from  consequential  disabilities.  Stetler's  Case,  1  Phil.,  IX,  38;  Com.?). 
Bush,  2  Duv.  (Ky.),  264. 

Limitation  upon  the  pardoning  power. — The  Constitution  gives  to  Congress  the 
power  to  dispose  of  the  public  property  and  to  the  President  only  the  power  to 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and 
consuls,  judges  of  the  Supreme  Court,  and  all  other  offi- 
cers of  the  United  States,  whose  appointments  are  not 
herein  otherwise  provided  for,  and  which  shall  be  estab- 
lished by  law;  but  the  Congress  may  by  law  vest  the 
appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads 
of  Departments.1  Constitution,  Art.  II,  sec.  2,  par.  2.  The 

pardon  crimes ;  and  the  President,  having  no  title  to  forfeited  property,  can  not 
restore  it,  though  ho  may  pardon  the  offense  which  caused  the  forfeiture.  Property 
confiscated  by  judgment  to  the  United  States  is  beyond  the  reach  of  executive 
clemency  and  is  absolutely  national  property.  Knote  v.  "U.  S.,  10  C.  Cls.  R.,  397. 
406.  IT.  S.  v.  Six  Lots  of  Ground,  1  Woods,  234.  Osborn  v.  U.  S.,  91  U.  S.,  474,  477. 
Pleading.— A  pardon  is  a  deed,  to  the  validity  of  which  delivery  is  essential,  and 
delivery  is  not  complete  without  acceptance.  *  *  *  The  pardon  may  possibly 
apply  to  a  different  person  or  to  a  different  crime.  It  may  be  absolute  or  conditional. 
It  may  be  controverted  by  the  prosecutor  and  must  be  expounded  by  the  court. 
These  circumstances  combine  to  show  that  this,  like  any  other  deed,  ought  to  be 
brought  before  the  court  by  plea,  motion,  or  otherwise.  U.  S.  v.  Wilson,  7  Pet.,  150, 
161;  Ex  parte  Reno,  66  Mo.,  266.  The  recital  of  a  specific,  distinct  offense  in  a 
pardon  by  the  President,  limits  its  operation  to  that  offense,  and  such  pardon  does 
not  embrace  any  other  offense  for  which  separate  penalties  and  punishments  are 
provided.  Ex  parte  Weimer,  8  Biss.,  C.  Ct.,  321.  The  conviction  having  been  of 
two  offenses,  and  the  pardon  reciting  only  one,  the  pardon  operates  upon  the  offense 
recited.  State  v.  Foley,  15  Nev.,  64. 

1  Public  office.— An  office  is  a  public  station,  or  employment,  conferred  by  the  ap- 
poiutmentof  Government.  The  term  embraces  the  ideas  of  tenure,  emolument,  and 
duties.  *  *  The  duties  are  continuing ;and  permanent,  not  occasional  and  transi- 
tory, and  arc 'defined  by  rules  prescribed  by  Goveruinentand  not by  contract.  *  *  * 
A  Government  office  is  different  from  a  Government  contract.  The  latter,  from  its 
nature,  is  necessarily  limited  in  its  duration  and  specific  in  its  objects.  The  terms 
agreed  upon  define  the  rights  and  obligations  of  both  parties,  and  neither  may  depart 
from  them  without  the  assent  of  the  other.  U .  S.  v.  Hart  well,  6  Wall.,3h5, 3v»4 ;  U.  S. 
v.  Maurice,  2  Brockenbrough,  10'!.  A  public  officer  is  the  incumbent  of  an  office 
"who  exercises  con  t  in  uously,  and  as  a  part  of  the  regular  and  permanent  administra- 
tion of  the  Government,  its  public  powers,  trusts,  and  duties.'  Sheboygan  Co  v. 
Parker,  3  Wall  ,  93,  96.  Unless  a  person  in  the  service  of  the  Government  holds 
his  place  by  virtue  of  an  appointment  by  the  President,  or  of  one  of  the  courts  of 
justice  or  heads  of  Departments  authorized  by  law  to  make  such  an  appointment, 
he  is  not,  strictly  speaking,  an  officer  of  the  United  .States.  U.  S.  v.  Mouat,  124 
U.  S.,  303,  307;  U.  S.  v.  Germaine,  99  U.  S..  508,510. 

Appointments  to  office.—  Appointments  provided  for  by  act  of  Congress,  merely  in 
general  terms,  must  be  made  by  and  with  the  advice  and  consent  of  the  Senate. 
6  Opiu.  Att.  Gen.,  1.  When  a  person  has  been  nominated  to  an  office  by  the  Presi- 
dent, confirmed  by  the  Senate,  and  his  commission  has  been  signed  by  the  President, 
and  the  seal  of  the  United  States  affixed  thereto,  his  appointment  to  that  office  ia 
complete.  Congress  may  provide  *  *  that  certain  acts  shall  be  done  by  the 
appointee  before  ho  shall  enter  on  the  possession  of  the  office  under  the  appoint- 
ment. These  acts  then  become  conditions  precedent  to  the  complete  investiture  of 
the  office;  but  they  are  to  be  performed  by  the  appointee,  not  by  the  Executive;  all 
that  the  Executive  can  do  to  invest  the  person  with  his  office  has  been  completed 
when  the  commission  has  been  signed  and  sealed,  and  when  the  person  has  per- 
formed the  required  condition,  his  title  to  enter  on  the  possession  of  the  office  is  also 
complete.  U.  S.  v.  Le  Baron,  19  How.,  73,  78;  U.  S.  v.  Stewart,  ibid.,  79;  Marbury 
v.  Madison,  1  Cranch,  137. 

Powers  of  officers.— All  the  officers  of  the  Government,  from  the  highest  to  the 
lowest,  are  but  agents  with  delegated  powers,  and  if  they  act  beyond  the  scope  of 
their  delegated  powers  their  acts  do  not  bind  the  principal.  IT.  S.  v.  Maxwell  Grant, 
21  Fed.  Rep. ,19.  An  officer  can  only  bind  the  Government  by  acts  which  come 
within  a  just  exercise  of  his  official  power,  Hiintert;.  U.  S.,  5  Pet.,  173, 178;  TheFloyd 
Acceptances,  7  Wall . ,  666 ;  State  v.  Hastings,  12  Wis.,  596.  It  is  a  question  of  law  for 
the  court  whether  an  act  is  a  part  of  the  official  duty  of  a  public  officer.  U.  S.  v. 
Buchanan,  8  How.,  83.  Every  public  officer  is  required  to  perform  all  duties  which 
are  strictly  official,  although  they  may  be  required  by  laws  passed  after  he  comes  into 
office,  and  may  be  cumulative  upon  his  original  duties,  and  although  his  compensation 
therefor  be  wholly  inadequate.  In  such  case  he  must  look  to  the  bounty  of  Con- 
gress for  any  additional  reward.  Andrews  v.  U.  S.,  2  Story,  202.  An  officer  is  bound 
to  use  that  care  and  diligence  in  the  discharge  of  his  duties  that  a  conscientious  and 
prudent  man,  acting  under  a  just  sense  of  his  obligations,  would  exercise  under  the 
circumstances  of  a  particular  case,  and  if  he  fails  and  neglects  to  do  so  he  is  culpa- 
ble. U.  S.  v.  Baldridge,  11  Fed.  Rep.,  552. 

Presumptions  as  to  official  acts.  —  The  acts  of  an  officer  to  whom  a  public  duty  is 
assigned,  within  the  sphere  of  that  duty,  are  prima  facie  within  his  power.  U.  S.  v. 
Arredondo,  6  Pet.,  691 ;  U.  S.  v.  Clarke,  8  ibid.,  436, 452 ;  Percheman  v.  U.  S.,  7  ibid.,  51 ; 
Delassus  v.  U.  S.,  9  ibid.,  117, 134 ;  Strother  v.  Lucas,  12  ibid.,  410, 438;  U.  S.  v.  Peralta, 
19  How.,  343,  347.  When  a  particular  functionary  is  clothed  with  the  duty  of  decid- 
ing a  certain  question  of  fact,  his  decision  in  the  absence  of  fraud,  is  conclusive. 
Logan  v.  The  County,  16  Wall.,  6.  He  who  alleges  that  an  officer  intrusted  with 
important  duty  Uaa  violated  his  instructions,  must  show  it.  The  courts  ought  to 


8  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting 
commissions  which  shall  expire  at  the  end  of  their  next 
session.  Ibid.,  par.  3. 

require  very  full  proof  that  an  officer  has  transcended  his  powers  before  they  so 
determine.  U.  S.  v.  Peralta,  19  How.,  343,  347;  Delassus  v.  U.  S.,  9  Pet,,  117,  134. 
When  a  public  officer  is  to  do  any  act  on  proof  of  certain  facts,  of  the  competency 
and  sufficiency  of  which  he  is  to>  judge,  it  is  to  be  presumed,  from  the  doing  of  the 
act,  that  the  proof  was  regularly  and  satisfactorily  made,  and  its  sufficiency  is  not 
subject  to  reexamination.  Phil,  and  Tren.  R.  R.  Co.  v.  Stimpson,  14  Pet.,  448. 

Tenure. — The  power  to  appoint  includes  the  power  to  remove,  when  the  Constitu- 
tion has  not  otherwise  provided,  and  when  the  laws  of  Congress  have  not  fixed  a 
tenure  of  office.  Ex  parte  Hennen,  13  Pet.,  230;  U.  S.  v.  A  very,  Deady,  204. 
When  Congress,  by  law,  vests  the  appointment  of  inferior  officers  in  the  heads  of 
Departments,  it  may  limit  and  restrict  the  power  of  removal  as  it  deems  best  for 
the  public  interests.  U.  S.  v.  Perkins,  116  U.  S.,  483. 

Resignation  —That  a  public  office  may  bo  vacated  by  resignation  is  established  by 
long  and  familiar  practice,  and  is  recognized  by  express  provision  of  law.  Nor  can 
there  be  any  doubt  that  a  resignation  may  bo  effected  by  the  concurrence  of  the 
officer  and  the  appointing  power;  its  essential  elements  are  an  intent  to  resign  on 
the  one  side  and  an  acceptance  on  the  other.  It  may  bo  either  in  writing  or  by  parol, 
expressly  or  by  implication.  To  perfect  a  resignation  nothing  more  is  necessary 
than  that  the  proper  authority  manifest  in  some  way  its  acceptance  of  the  offer  to 
resign.  It  then  becomes  effectual,  and  operates  to"  relieve  the  incumbent  either 
immediately  or  on  the  day  specially  fixed  according  to  its  terms.  An  offer  to  resign 
is  revocable  prior  to  acceptance;  after  acceptance  and  before  it  has  taken  effect  it 
may  be  modified,  or  withdrawn  by  consent  of  both  parties,  but  this  control  extends 
no  further.  When  a  resignation  once  takes  effect  the  official  relations  of  the  incum- 
bent are  ipso  facto  dissolved;  he  has  110  longer  any  right  to,  or  hold  upon,  the  office. 
U  Opin.  Att.  Gen.,  259. 


CHAPTER    II. 


PROVISIONS    APPLICABLE    TO     THE    SEVERAL 
EXECUTIVE   DEPARTMENTS. 


Par. 

5.  Application  of    provisions    of 

this  title. 

6.  Departmental  regulations. 

7.  Vacancies,     how     temporarily 

filled. 

8.  Secretary  of  War  may  author- 

ize chief  clerk  to  sign  requi- 
sitions, etc.,  in  his  absence. 

9.  Vacancies    in    subordinate  of- 

fices. 

10.  Discretionary  authority  of  the 

President. 

11.  Commanding  General  of  the 

Army,  etc.,  may  be  desig- 
nated by  President  to  per- 
form duties  of  Secretary  of 
War. 

12.  Temporary  appointments  lim- 

ited to  thirty  days. 

13.  Restriction  on  temporary  ap- 

pointments. 

14.  Extra    compensation    disal- 

lowed. 

15.  Chief  clerks  to  supervise  sub- 

ordinate clerks. 

16.  Chief  clerks  to  distribute  du- 

ties, etc. 

17.  Duty  of  chief  on  receipt  of  re- 

port. 

18.  Disbursing  clerks. 

19.  Hours  of  labor  in  Executive 

Departments.  Leaves  of  ab- 
sence. Sick  leaves.  Exten- 
sions. 


Par. 

20.  Classification  of  Department 

clerks. 

21.  Examinations. 

22.  Clerkships  open  to  women. 

23.  Distribution  of  clerks.     De- 

tails. 

24.  Transfer  of  duties  to  clerks  of 

lower  class. 

25.  Salaries  of  persons  employed 

in  the  Departments. 

26.  Temporary  clerks. 

27.  Authority   to    employ   clerks 

and  other  employees. 

28.  Employees,    clerks,   etc.,   be- 

yond provisions  of  law. 

29.  Extra  compensation  to  clerks 

prohibited. 

30.  Restriction  on  employing  extra 

clerks. 

31.  Employees  to   be  paid    from 

specific  appropriations  only. 
Civil  officers  not  to  be  de- 
tailed for  duty  in  the  District 
of  Columbia.  Appointments 
to  be  apportioned  among  the 
States  and  Territories. 

32.  Oaths,  when  administered  by 

officers,  etc. 

33.  No  Department  officer    to 

charge  fees  for  oath  of  office 
to  employees. 


10 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 


Par. 

34.  Chief  clerks  of  Executive  De- 

partments to  administer  oath 
of  office  free. 

35.  Per  diem  employees  to  receive 

pay  for  certain  holidays. 

36.  Decoration  Day. 

37.  Labor  Day  to  be  a  public  holi- 

day. 

38.  Subpoanas  to  witnesses. 

39.  Witness  fees. 

40.  Compelling  testimony. 

41.  Professional    assistance,   how 

obtained. 

42.  Evidence  to  be  furnished  by 

the  Departments  in  suits 
pending  in  the  Court  of 
Claims. 

43.  Employment  of   attorneys  or 

counsel. 

44.  Persons  formerly  in   the   De- 

partments not  to  prosecute 
claims  in  them. 

45.  Purchases     from     contingent 

funds. 

46.  Expenditures  for  newspapers. 

47.  Annual  report  of  expenditure 

of  contingent  funds. 

48.  Annual  estimates.     Statement 

of  condition  of  business  to 
be  submitted. 

49.  Report  of  clerks  employed. 

50.  Time  of    making  annual  re- 

ports. 


Par. 

51.  Department  reports,  when  to 

be  furnished  to  printer. 

52.  Inventories  of  property. 

53.  Biennial  list  of  persons  em- 

ployed in  each  Department 
to  be  filed  in  the  Interior 
Department. 

54.  Report  to  Congress  in  annual 

estimates  of  buildings 
rented. 

55.  Report  of  number  of  employ- 

ees who  are  below  a  fair 
standard  of  efficiency. 

56.  Requesting,  etc., contributions 

by  officers  of  Government 
for  political  purposes  pro- 
hibited. 

57.  Draping  public  buildings  in 

mourning  prohibited. 

58.  Closing  Departments  for  de- 

ceased ex-officials  prohib- 
ited. 

59.  Official  postage  stamps  for  de- 

partmental use. 

60.  Penalty  envelopes  for   inclo- 

sure  of  answers  to  official 
communications. 

61.  No  contracts  to  be  made  for 

rent  of  any  building  iu 
Washington  without  appro- 
priation therefor,  etc. 


Application  of 
provisions  of  this 
title. 


5.  The  provisions  of  this  title  shall  apply  to  the  following 
Executive  Departments: 

First.  The  Department  of  State, 
sec.  iss,  R.  s.     Second.  The  Department  of  War. 

Third.  The  Department  of  the  Treasury. 

Fourth.  The  Department  of  Justice. 

Fifth.  The  Post-Office  Department. 

Sixth.  The  Department  of  the  Navy. 

Seventh.  The  Department  of  the  Interior. 

The  word  "Department"  when  used  alone  in  this  title, 
and  titles  live,  six,  seven,  eight,  nine,  ten,  and  eleven, 
means  one  of  the  Executive  Departments  enumerated  in 
the  preceding  section.1 


Sec.  159,  R.  S. 


Word  "Depart 
ment." 


*The  titles  so  numbered  in  the  Revised  Statutes  are  the  ones  above  referred  to. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  11 

6.  The  head  of  each  Department  is  authorized  to  pre-  re]Du31Partmental 
scribe  regulations,  not  inconsistent  with  law,  for  the  gov-  $3y  27, 1739,  c. 
ernment  of  his  Department,  the  conduct  of  its  officers  and  ivi7S9%8i^  vpi,' 
clerks,  the  distribution  and  performance  of  its  business,  1849,  c!  7AAU.S',  p. 
and  the  custody,  use,  and  preservation  of  the  records,  pa-c^T.V'p™: 
pers,  and  property  appertaining  to  it.1  jj™1®  i'7187^83- 

Apr.  30, 1798,  c.  35,  v.  1,  p.  553 ;  June  22, 1870,  c.  150,  s.  8,  v.  16,  p.  163 ;  Mar.  3, 1849,  c.  ]08,  v.  9,Pp.  395! 
Sec.  101,  B.  8. 


'The  President  speaks  and  acts  through  the  heads  of  the  several  Executive  De- 
partments in  relation  to  subjects  wh  ich  appertain  to  their  respective  duties.  Wilcox 
v.  Jackson,  13  Pet.,  498,  513;  Wolsey  v.  Chapman,  101  U.  S.,  755.  It  is  the  general 
theory  of  departmental  administration  that  the  heads  of  the  Executive  Departments 
are  the  executors  of  the  will  of  the  President.  10  Opin.  Att.  Gen.,  527.  Asa  gen- 
eral rule  the  direction  of  the  President  is  to  be  presumed  in  all  instructions  and 
orders  issuing  from  the  competent  Department.  7  id.,  453.  Official  instructions 
issued  by  the  heads  of  the  several  Executive  Departments,  civil  and  military,  within 
their  respective  jurisdictions,  are  valid  and  lawful,  without  containing  express  ref- 
erence to  the  direction  of  the  President.  7  id.,  453.  The  duties  of  tho  heads  of  the 
several  Executive  Departments  are  derived,  in  part,  from  the  Constitution  and  are, 
in  part,  imposed  by  statute.  In  the  execution  of  the  former,  they  act  as  the  repre- 
sentatives of  the  President,  to  Avhom  they  are  responsible  for  their  correct  perform- 
ance. For  duties  imposed  by  statute  their  responsibility  is  to  the  legislature,  and 
they  are  controlled  in  all  matters  relating  to  performance  by  such  statutory  rules 
and  regulations  as  Congress  may  see  fit  to  impose.  (See  Marbury  v.  Madison,  1  Cr. 
137,  and  par.  1,  note  1.) 

The  executive  power  is  vested  in  a  President,  and  so  far  as  his  powers  are  derived 
from  the  Constitution  ho  is  beyond  the  reach  of  any  other  Department,  except  in 
the  mode  prescribed  by  the  Constitution  through  the  impeaching  power,  but  it  by 
no  means  follows  that  every  officer  in  every  branch  of  that  Department  is  under  the 
exclusive  direction  of  the  President.  *  *  *  There  are  certain  political  duties 
imposed  upon  many  officers  in  the  executive  department  the  discharge  of  which  is 
under  the  direction  of  tho  President,  but  it  would  be  an  alarming  doctrine  that 
Congress  can  not  impose  upon  any  executive  officer  any  duty  they  may  think 
proper,  which  is  not  repugnant  to  any  rights  secured  and  protected  by  the  Con- 
stitution, and,  in  such  cases,  the  duty  and  responsibility  grow  out  of  and  are  sub- 
ject to  the  control  of  the  law  and  not  to  the  direction  of  the  President,  and  this  is 
emphatically  the  case  where  tho  duty  is  of  a  ministerial  character.  Kendall  v. 
U.  S.,  12  Pet.,  524,  610. 

Ministerialand  discretionary  duties.  --The  duties  performed  by  the  heads  of  the  sev- 
eral Executive  Departments  are  either  ministerial  or  discretionary  or  quasi  judicial 
in  character.  "  The  question  whether  the  legality  of  an  act  of  the  head  of  a  'Depart- 
ment be  examinable  in  a  court  of  justice  or  not  must  always  depend  on  tho  nature 
of  the  act.  13y  the  Constitution  of  the  United  States  the  President  is  invested  with 
certain  important  political  powers  in  the  exercise  of  which  he  is  to  use  his  own  dis- 
cretion, and  is  accountable  only  to  his  country  in  his  political  character  and  to  his 
own  conscience.  To  aid  him  in  the  performance  of  these  duties  he  is  authorized  to 
appoint  certain  officers,  who  act  by  his  authority  and  in  conformity  to  his  orders. 
In  such  cases  their  acts  are  his  acts,  and  whatever  opinion  may  be  entertained  of 
the  manner  in  which  Executive  discretion  may  be  used,  still  there  exists  and  can 
exist  no  power  to  control  their  discretion.  The  subjects  are  political.  They  respect 
the  nation,  not  individual  rights,  and  being  intrusted  to  the  Executive  the  decision 
of  the  Executive  is  conclusive.  *  *  *  The  conclusion  is  that  where  the  heads  of 
Department*  are  the  political  or  confidential  agents  of  the  Executive,  merely  to 
execute  the  will  of  tho  President,  nothing  can  be  more  perfectly  clear  than  that 
their  acts  are  only  politically  examinable.  Marbury  v.  Madison,  1  Cr.,  137,  166- 
Kendall  v.  U.  S.,  12  Pet.,  524,  611;  Decatur  v.  Paulding,  14  Pet.,  497,  515.  We  are 
not  aware  of  any  case  in  Kn  gland  or  this  country  in  which  it  has  been  held  that 
a  public  officer,  acting  to  the  best  of  his  judgment  and  from  a  sense  of  duty,  in  a 
matter  of  account  with  an  individual,  has  been  held  liable  for  an  error  of  judg- 
ment. *  *  *  A  public  officer  is  not  liable  to  an  action  if  he  falls  into  error  in  a 
case  where  the  act  to  be  done  is  not  merely  a  ministerial  one  but  is  one  in  relation  to 
which  it  is  his  duty  to  exercise  judgment  and  discretion,  even  though  an  individual 
may  suffer  by  his  mistake.  A  contrary  principle  would  indeed  be  pregnant  with 
the  greatest  "mischiefs.  Kendall  v.  Stokes,  3  How.,  87,  98;  Goulds.  Hammond,  1 
Me  All.,  235, 243;  Noble  v.  Union  River  Logging  Co.,  147  U.  S.,  165, 171. 

A  ministerial  duty,  the  performance  oi  which  may,  in  proper  cases,  be  required  of 
the  head  of  a  Department  by  judicial  process,  is  one  in  respect  to  which  nothing  is 
left  to  discretion.  It  is  a  simple,  definite  duty,  arising  under  conditions  admitted  or 
proved  to  exist  and  imposed  by  law.  Mississippi  v.  Johnson,  4  Wall.,  475,  498; 
Marbury  v.  Madison,  1  Cr.,  137;  Kendall  v.  Stockton,  12  Pet.,  524.  As  a  mandamus 
can  only  be  granted  because  there  is  no  other  adequate  remedy  at  law,  an  action  for 
damages  can  not  be  afterwards  sustained,  for  the  same  cause  of  action,  the  two  being 
inconsistent.  Kendall  v.  Stokes,  3  How.,  87,  102. 

Liability  for  damages.—  The  executive  officers  of  the  United  States  are  personally 
liable  at  law  for  damages,  in.  the  ordinary  forms  of  action,  for  illegal  official,  or  rain- 


12  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


TEMPORARY  VACANCIES,  HOW  FILLED. 
Vacancies  ;     7.  In  case  of  the  death,  resignation,  absence,  or  sickness 

how  temporarily 

filled.  of  the  head  of  any  Department,  the  first  or  sole  assistant 

227,Usyi,  V.  15,'p!  thereof  shall,  unless  otherwise  directed  by  the  President, 

s'ec.  177,  R.  s.  as  provided  by  section  one  hundred  and  seventy-nine  [Rev. 

Stat.,  par.  10,  post],  perform  the  duties  of  such  head  until 

a  successor  is  appointed,  or  such  absence  or  sickness  shall 

cease. 

wa?mraetaurtL£-     8>  Wnen>  from  illness  or  other  cause,  the  Secretary  of 


e  chief  clerk  to  War  is  temporarily  absent  from  the  War  Department,  he 

i<in    requisi- 

ttoBs,ete.>inhi8inay  authorize  the  chief  clerk  of  the  Department  to  sign 

Mar.  4,  1874,  v.  requisitions  upon  the  Treasury  Department,  and  other 

papers  requiring  the    signature  of  said   Secretary  5    the 

same,  when  signed  by  the  chief  clerk  during  such  tempo- 

rary absence,  to  be  of  the  same  force  and  effect  as  if  signed 

by  the  Secretary  of  War  himself.     Act  of  March  4,  1874 

(18  Stat.  L.,  19). 

vacancies  in     9.  In  case  of  the  death,  resignation,  absence,  or  sickness 

subordinate     of- 

fices. of  the  chief  of  any  Bureau,  or  of  any  officer  thereof,  whose 

227,8.  2,  v.  15,  p!  appointment  is  not  vested  in  the  head  of  the  Department, 

sec.  178,  B.  s.  the  assistant  or  deputy  of  such  chief  or  of  such  officer,  or 

if  there  be  none,  then  the  chief  clerk  of  such  Bureau,  shall, 

unless  otherwise  directed  by  the  President,  as  provided  by 

section  one  hundred  and  seventy-  nine,  perform  the  duties 

of  such  chief  or  of  such  officer  until  a  successor  is  appointed 

or  such  absence  or  sickness  shall  cease. 

Discretionary     10.  In  any  of  the  cases  mentioned  in  the  two  preceding1 

authority  of  the  . 

President.         sections,  except  the  death,  resignation,  absence,  or  sick- 
227,  B.y3,  v.  15,  p.'  ness  of  the  Attorney-General,  the  President  may,  in  his 


u°  s. 2?v.  discretion,  authorize  and  direct  the  head  of  any  other  De 


1 870,  c.  150, 


16sec!i279,  B.  s.  partment  or  any  other  officer  in  either  Department  whose 
appointment  is  vested  in  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  to  perform  the  duties  of 
the  vacant  office  until  a  successor  is  appointed,  or  the  sick- 
ness or  absence  of  the  incumbent  shall  cease. 

isterial  acts,  or  omissions,  to  the  injury  of  an  individual.  Marbury  v.  Madison, 
1  Cr.,  137, 166;  Gaines  v.  Thompson,  7  Wall.,  347;  Amy  v.  The  Supervisors,  11  Wall., 
136, 137, 166.  Where  a  ministerial  officer  acts  in  good  faith,  he  is  not  liable  in  exem- 
plary damages  for  an  injury  done;  but  ho  can  claim  no  further  exemption  where  his 
acts  are  clearly  against  the  law.  Tracy  v.  Swartwout,  10  Pet.,  80. 

Measure  of  damages.— Where  the  law  requires  absolutely  a  ministerial  act  to  be 
done  by  a  public  officer,  and  he  neglects  or  refuses  to  do  such  act,  he  may  be  com- 
pelled to  respond  in  damages  to  the  extent  of  the  injury  arising  from  his  conduct. 
A  mistake  as  to  his  duty  and  honest  intentions  will  not  excuse  the  offender.  Amy 
v.  The  Supervisors,  11  walL  136.  Where  an  action  is  brought  for  an  injury  done  in 
the  discharge  of  an  official  duty,  the  damages  are  measured  generally  by  the  extent 
of  that  injury.  Bispham  v.  Taylor,  2  McLean,  408.  Pierce  v.  Strickland,  2  Story,  292. 
For  general  provisions  respecting  public  officers,  see  Chapter  IV  and  par.  4,  ante. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  13 

11.  The  President  may  authorize  and  direct  the  com-    commanding 
manding  general  of  the  Army  or  the  chief  of  any  military  Army,  etc.,  may 
bureau  of  the  War  Department  to  perform  the  duties  of  PrawS  u'o  per- 
the  Secretary  of  War  under  the  provisions  of  section  ones«oretiry  of 
hundred  and  seventy  -nine  of  the  Eevised  Statutes,  and    lug.  5,1882,  T. 
section  twelve  hundred  and  twenty-two  of  the  Eevised  22>  p<  m 
Statutes  shall  not  be  held  or  taken  to  apply  to  the  officer 

so  designated  by  reason  of  his  temporarily  performing  such 
duties.     Act  of  August  5,  1882  (22  Stat.  L.,  238). 

12.  A  vacancy  occasioned  by  death  or  resignation  must  ofS^Kim" 
not  be  temporarily  filled  under  the  three  preceding  sections  j^  to  thirty 
for  a  longer  period  than  thirty  days.     Act  of  February  6,    July  23,  ises,  c. 
1891  (26  Stat.  L.,  733).  168  ;  ^eh.  6-  i«n>  v.  26,  P.  733.  22seC8.'  i'so";  B!  & 

13.  No  temporary  appointment,  designation,  or  assign-    Restriction  on 
ment  of  one  officer  to  perform  the  duties  of  another,  in  the  pofntm°eut8.y  ap~ 
cases  covered  by  sections  one  hundred,  and  seventy-seven  221^.2^1^  £ 
and  one  hundred  and  seventy-eight  [Rev.  Stat.],  shall  be  16s'ec.  isi,  B.  s 
made  otherwise  than  as  provided  by  those  sections,  except 

to  fill  a  vacancy  happening  during  a  recess  of  the  Senate. 

14.  An  officer  performing  the  duties  of  another  office,    Extra  compen- 


during  a  vacancy,  as  authorized  by  sections  one  hundred  iow\ 
and  seventy-seven,  one  hundred  and  seventy-eight  [Eev.  227,Us.y3fv.18i?fp.' 
Stat.J,  and  one  hundred  and  seventy-nine  [ibid.],  is  not  by  16|eC.  i82,B.s. 
reason  thereof  entitled  to  any  other  compensation  than  that 
attached  to  his  proper  office. 

CHIEF   CLERKS  —  DISBURSING   CLERKS. 

15.  Each  chief  clerk  in  the  several  Departments,  and    chief  clerks  to 
Bureaus,  and  other  offices  connected  with  the  Departments,  tiKecierk8b°r" 
shall  supervise,  under  the  direction  of  his  immediate  supe-  zos^'^^p. 
rior,  the  duties  of  the  other  clerks  therein,  and  see  that  52§-ec.  173j  B]  Se 
they  are  faithfully  performed.1 

16.  Each  chief  clerk  shall  take  care,  from  time  to  time,    chief  clerks  to 
that  the  duties  of  the  other  clerks  are  distributed  with^etl?11'0  du~ 
equality  and.  uniformity,  according  to  the  nature  of  the  20^13!'  vf&J'p.' 
case.     He  shall  revise  such  distribution  from  time  to  time,  52|ec  %74  R  8 
for  the  purpose  of  correcting  any  tendency  to  undue  accu- 
mulation or  reduction  of  duties,   whether   arising   from 
individual  negligence  or  incapacity,  or  from  increase  or 
diminution  of  particular  kinds  of  business.    And  he  shall 

report  monthly  to  his  superior  officer  any  existing  defect 
that  he  may  be  aware  of  in  the  arrangement  or  dispatch  of 
business. 

!For  authority  to  administer  oaths  of  office  see  the  act  of  August  29,  1890  (26  Stat. 
L.  371),  par.  34,  post. 


14  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Duty  of  chief     \^t  Each  head  of  a  Department,  chief  of  a  Bureau,  or 

OH  receipt  ot  re- 

PAu   26 1842  c  otner  suPeri°r  officer,  shall,  upon  receiving  each  monthly 

202,  s.  i3,'v.  5,'p.  report  of  his  chief  clerk,  rendered  pursuant  to  the  preced- 

Sec.  175,  R.  s.  ing  section,  examine  the  facts  stated  therein,  and  take 

such  measures,  in  the  exercise  of  the  powers  conferred 

upon  him  by  law,  as  may  be  necessary  and  proper  to  amend 

any  existing  defects  in  the  arrangement  or  dispatch   of 

business  disclosed  by  such  report. 

Disbursing     is.  The   disbursing   clerks   authorized    by   law   in    the 

kar.  3, 1853,  c.  several  Departments  shall  be  appointed  by  the  heads  of 

206, 211;^ Mar.  3,  the  respective  Departments,   from   clerks  of  the  fourth 

10?  p?' 669^  Mar!  class;  and  shall  each  give  a  bond  to  the  United  States  for 

v.r£ji?485 (492)'.  the  faithful  discharge  of  the  duties  of  his  office  according 

sec,  176,  B.  s.  ^  ^^  .^  &VLCfa  amount  as  shall  be  directed  by  the  Secretary 

of  the  Treasury,  and  with  sureties  to  the  satisfaction  of 
the  Solicitor  of  the. Treasury  j  and  shall  from  time  to  time 
renew,  strengthen,  and  increase  his  official  bond,  as  the 
Secretary  of  the  Treasury  may  direct.  Each  disbursing 
clerk,  except  the  disbursing  clerk  of  the  Treasury  Depart- 
ment, must,  when  directed  so  to  do  by  the  head  of  the 
Department,  superintend  the  building  occupied  by  his 
Department.  Each  disbursing  clerk  is  entitled  to  receive, 
in  compensation  for  his  services  in  disbursing,  such  sum  in 
addition  to  his  salary  as  a  clerk  of  the  fourth  class  as  shall 
make  his  whole  annual  compensation  two  thousand  dollars 
a  year. 

HOURS   OF    LABOR   IN    THE    EXECUTIVE    DEPARTMENTS — 
LEAVES   OF   ABSENCE. 

19<  That  on  and  after  July  first,  eighteen  hundred  and 
3  ninety- three,  it  shall  be  the  duty  of  the  heads  of  the  several 
1893,  v.  27,  p.  715'.  Executive  Departments,  in  the  interest  of  the  public  serv- 
ice, to  require  of  all  clerks  and  other  employees,  of  what- 
ever grade  or  class,  in  their  respective  departments,  not 
less  than  seven  hours  of  labor  each  day,  except  Sundays 
and  days  declared  public  holidays  by  law  or  Executive 
Provisos.        order:  Provided,  That  the  heads  of  the  Department  may, 
Extending  or  by  special  order,  stating  the  reason,  further  extend  or  limit 

limiting  hours.        J      \ 

the  hours  of  service  of  any  clerk  or  employee  in  their 

Departments,  respectively;  but  in  case  of  an  extension  it 

8ii4Mieave l vilii SQa^  ^e  without  additional  compensation:  And  provided 

pay-  further.  That  the  head  of  any  Department  may  grant  thirty 

days'  annual  and  thirty  days7  sick  leave,  with  pay,  in  any 

one  year  to  each  clerk  or  employee,  the  sick  leave  to  be 

allowed  in  cases  of  personal  illness  only,  or  where  some 

member  of  the  immediate  family  is  afflicted  with  a  conta- 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  15 

gious  disease  and  requires  the  care  and  attendance  of  such 

employee,  or  where  his  or  her  presence  in  the  Department 

would  jeopardize  the  health  of  fellow  clerks:  And  be  it 

further  provided,  That  in  exceptional  and  meritorious  cases     Extension    of 

where  to  limit  such  sick  leave  would  work  peculiar  hard- 

ship, it  may  be  extended,  in  the  discretion  of  the  head  of 

the  Department,  with  pay,  not  exceeding  sixty  days  in  any    Limit,  with 

one  case  or  in  any  one  calendar  year. 

This  section  shall  not  be  construed  to  mean  that  so  long    Excessive  ab- 
as a  clerk  or  employee  is  borne  upon  the  rolls  of  the  Depart-  8< 
ment  in  excess  of  the  time  herein  provided  for  or  granted, 
that  he  or  she  shall  be  entitled  to  pay  during  the  period  of   J^VtYo  n*  6of 


such  excessive  absence,  but  that  the  pay  shall  stop  upon  sranted  leaye- 
the  expiration  of  the  granted  leave.1     Sec.  5,  act  of  March  3, 
1893  (27  Stat.  L.,  715). 

CLASSIFICATION   OF   CLERKS. 

20.  The  clerks  in  the  Departments  shall  be  arranged  in, 

of     Department 

lour  classes,  distinguished  as  the  first,  second,  third,  and  clerks. 

„  Mar.  3,  1853,  c. 

lOUrth  Classes.  11,&.  3,  v.  10,  p.  209  ;  Mar.  3,  1855,  c.  175,  8.4.V.10,  p.  669; 

Au&.  15,  1876,  c.  287,  s.  3,  v.  19,  p.  169.     Sec.  103,  It.  S. 

21.  No  clerk  shall  be  appointed  in  any  Department  in    Examinations- 

.  -Mflr.  3,  1853,  c» 

either  ot  the  four  classes  above  designated  until  he  has97'  s-  3-  v.  10,  P, 

209;  Mar.  3,  1855, 

been  examined  and  found  qualified  by  a  board  of  threes  175,  8.  4,  v.io,P. 
examiners,  to  consist  of  the  chief  of  the  Bureau  or  office    sec.  164,  B.  s. 
into  which  such  clerk  is  to  be  appointed  and  two  other 
clerks  to  be  selected  by  the  head  of  the  Department.2 

22.  Women  may,  in  the  discretion  of  the  head  of  any    clerkships 

J  open  to  women. 

Department,  be  appointed  to  any  of  the  clerkships  therein    July  12,  i87o,c. 
authorized  by  law,  upon  the  same  requisites  and  condi-23o,25o.'  ^ 
tions,  and  with  the  same  compensations,  as  are  prescribed 
for  men. 

23.  Each  head  of  a  Department  may,  from  time  to  time,  cl^88tributionof 
alter  the  distribution  among  the  various  bureaus  and  offices 

of  his  Department,  of  the  clerks   and  other   employees 

allowed  by  law,  except  such  clerks  or  emplovees  as  mav  be    sec.  3,  May  28, 

.        ,    y       ,  A  ,    J  J  1896,  v.  29,  p.  179. 

required  by  law  to  be  exclusively  engaged  upon  some  spe-  sec,  166,  B.  s. 
cific  Avork,  as  he  may  find  it  necessary  and  proper  to  do, 
but  all  details  hereimder  shall  be  made  by  written  order 
of  the  head  of  the  Department,  and  in  no  case  be  for  a 
period  of  time  exceeding  one  hundred  and  twenty  days: 
Provided,  That  details  so  made  may,  on  expiration,  be 

1  This  section  operates  to  repeal  section  162  of  the  Revised  Statutes  in  respect  to 
the  hours  of  business  in  the  several  Executive  Departments.  It  replaces  section  4 
of  the  act  of  March  3,  1883  (sec.  4,  act  of  March  3,  1883,  22  Stat  L.,  563),  in  respect 
to  the  same  subject. 

JFor  rules  regulating  the  procurement  of  services  in  the  several  Executive  Depart- 
ments seen  in  Chapter  IV.  the  title  The  Civil  Service, 


16  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

renewed  from  time  to  time  by  written  order  of  the  head  of 
the  Department,  in  each  particular  case,  for  periods  of  not 
exceeding  one  hundred  and  twenty  days.    All  details  here- 
tofore made  are  hereby  revoked,  but  may  be  renewed  as 
provided  herein.    Sec.  5,  act  of  May  28, 1896  (29  Stat.  L.,  179). 
tie^rtrcSrkf8dof     24f  Tuat  whenever,  in  the  judgment  of  the  head  of  any 
losec  3laAu   15  Department  the  duties  assigned  to  a  clerk  of  one  class  can 
i§76,  v.  19,  p.  169'.  be  as  well  performed  by  a  clerk  of  a  lower  class  or  by  a 
female  clerk,  it  shall  be  lawful  for  him  to  diminish  the 
number  of  clerks  of  the  higher  grade  and  increase  the  num- 
ber of  the  clerks  of  the  lower  grade  within  the  limit  of 

Preference  of  the  total   appropriation   for   such   clerical   service:    Pro- 
discharged     sol- 
diers and  sailors,  mdedj  That  in  making  any  reduction  of  force  in  any  of  the 

Executive  Departments,  the  head  of  such  Department 
shall  retain  those  persons  who  may  be  equally  qualified 
who  have  been  honorably  discharged  from  the  military  or 
naval  service  of  the  United  States,  and  the  widows  and 
orphans  of  deceased  soldiers  and  sailors.  Sec.  5,  act  of 
August  15,  1876  (19  Stat.  L.,  169). 

.  SALARIES. 

n     %&•  The  annual  salaries  of  clerks  and  employees  in  the 
theDepartuients.  Departments,  whose  compensation  is  not  otherwise  pre- 

Mar.  3, 1853,  c.  scribed,  shall  be  as  follows : 
Sob!a^Apr.%     First.  To  clerks  of  the  fourth  class,  eighteen  hundred 

1854,c.52,  s.  i,v!  /Inllo-psj 
10,  p.  276;  Aug.a()llarS- 

is.  1856,  Res.^  is,     Second.  To  clerks  of  the  third  class,  sixteen  hundred 


208,  s.  6,  v.  14,  p. ; 

207;  July  12,     Third.  To  clerks  of  the  second  class,  fourteen  hundred 

1870,  c.  251,  s.  3, 

v.  16,   pp.  230,  dollars. 

250 

s'ec.  167,  R.  s.     Fourth.  To  clerks  of  the  first  class,  twelve  hundred  dol- 
lars. 

Fifth.  To  the  women  employed  in  duties  of  a  clerical 
character,  subordinate  to  those  assigned  to  clerks  of  the 
first  class,  including  copyists  and  counters,  or  temporarily 
'employed  to  perform  the  duties  of  a  clerk,  nine  hundred 
dollars. 

Sixth.  To  messengers,  eight  hundred  and  forty  dollars. 
Seventh.  To  assistant  messengers,  seven  hundred  and 
twenty  dollars. 

Eighth.  To  laborers,  seven  hundred  and  twenty  dollars.1 

Ninth.  To  watchmen,  seven  hundred  and  twenty  dollars.1 

cie?kesmp°rary     26.  Except  when  a  different  compensation  is  expressly 

c  52p8']2v'i()85^'Prescr^e(^   by  law,  any  clerk  temporarily  employed  to 

276.'    '  ' . 

1  The  annual  acts  of  appropriation  since  that  of  June  15,  1880  (sec.  3,  act  of  June 
15, 1880, 21  Stat.  L.,  237),  have  contained  provisions  fixing  the  salaries  of  laborers  and 
watchmen  at  $660  and  of  charwomen  at  $240.  (Sec,  2,  act  of  July  31, 1894,  2S3tat.  L., 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  17 

perform  the  same  or  similar  duties  with  those  belonging  to 
clerks  of  either  class  is  entitled  to  the  same  salary  as  is 
allowed  to  clerks  of  that  class.  (See  sec.  242,  R.  8.) 

27.  Each  head  of  a  Department  is  authorized  to  employ    Authority  to 
in  his  Department  such  number  of  clerks  of  the  sever  ala™S°ot  he  r'euv 
classes  recognized  by  law,  and  such  messengers,  assistant p  °yee 
messengers,  copyists,  watchmen,  laborers,  and  other  em-    Mar.  3,  ms,  c. 
ployees,  and  at  such  rates  of  compensation,  respectively,  lfi[  V658;'pcP'i3o,' 
as  may  be  appropriated  for  by  Congress  from  year  to  year.  399 2'3'  v'  18'  p> 
(See  sees.  ,201,  214,  235,  328,  351,  393,  416,  440,  476,  R.  S.)    Sec'  169'B-S- 

28.  That  the  executive  officers  of  the  Government  are    Employing 

clerks,  etc.,  be- 
hereby  prohibited  from  employing  any  clerk,  agent,  engi-  yomi  provisions 

neer,  draughtsman,  messenger  watchman,  laborer,  or  other  yseacW5,  Aug.  is, 
employee,  in  any  of  the  Executive  Departments  in  the 1876>  Vi  19)  p' 169' 
city  of  Washington,  or  elsewhere  beyond  provision  made 
by  law.1     Sec.  5,  act  of  August  15, 1876  (19  Stat.  L.,  169). 

29.  No  money  shall  be  paid  to  any  clerk  employed  in  8a-§5* 
either  Department  at  an  annual  salary,  as  compensation  prohibited. 
for  extra  services,  unless  expressly  authorized  by  law.  ^In-Y™3]?, 

1844,  c.  105,  s.  1,  v.  5,  pp.  681, 687;  Feb.  28,1867,  Res.  30,  s.  2,  v.  14,  p,  569.  s.  3,  v.  10,  pp.  209, 

30.  No  extra  clerk  shall  be  employed  in  any  Department,  ^8t™ct?ons'<m 
Bureau,  or  office,  at  the  seat  of  Government,  except  dur-  3k°f ing  extra 
ing  the  session  of  Congress,  or  when  indispensably  neces-  2of  sgil6'v852' p' 
sary  in  answering  some  call  made  by  either  House  of  Con-^  ^A^ne.  *ifc 
gress  at  one  session  to  be  answered  at  another;  nor  then,  VfgJ^piJ5^B*  s 
except  by  order  of  the  head  of  the  Department  in  which, 

or  iii  some  Bureau  or  office  of  which,  such  extra  clerk  shall 
be  employed.  And  no  extra  clerk  employed  in  either  of 
the  Departments  shall  receive  compensation  except  for 
time  actually  and  necessarily  employed,  nor  any  greater 
compensation  than  three  dollars  a  day  for  copying,  or  four 
dollars  a  day  for  any  other  service.1 

31.  That  no  civil  officer,  clerk,  draughtsman,  copyist,  mes-    Employees  to 

,     '  be  paid  from  spe- 

seuger,  assistant  messenger,  mechanic,  watchman,  laborer,  cific  appropri- 
or  other  employee  shall  after  the  first  day  of  October  nexta  Sec.  4,  lug.  5, 
be  employed  in  any  of  the  Executive  Departments,  or  sub- 
ordinate bureaus  or  offices  thereof  at  the  seat  of  Govern- 
ment, except  only  at  such  rates  and  in  such  numbers, 
respectively,  as  may  be  specifically  appropriated  for  by 
Congress  for  such  clerical  and  other  personal  services  for 
each  fiscal  year;  and  no  civil  officer,  clerk,  draughtsman, 
copyist,  messenger,  assistant  messenger,  mechanic,  watch- 
man, laborer,  or  other  employee  shall  hereafter  be  employed 
at  the  seat  of  Government  in  any  Executive  Department 


'  See  par.  31,  post. 

1919 2 


18  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  subordinate  bureau  or  office  thereof  or  be  paid  from  any 
appropriation  made  for  contingent  expenses,  or  for  any 
specific  or  general  purpose,  unless  such  employment  is  au- 
thorized and  payment  therefor  specifically  provided  in  the 
law  granting  the  appropriation,  and  then  only  for  services 
actually  rendered  in  connection  with  and  for  the  purposes 
of  the  appropriation  from  which  payment  is  made,  and  at 
the  rate  of  compensation  usual  and  proper  for  such  services, 
and  after  the  first  day  of  October  next  section  one  hundred 
and  seventy- two  of  the  Kevised  Statutes,  and  all  other  laws 

R.  s.  172  re-  and  parts  of  laws  inconsistent  with  the  provisions  of  this 
act,  and  all  laws  and  parts  of  laws  authorizing  the  employ- 
ment of  officers,  clerks,  draughtsmen,  copyists,  messengers, 
assistant  messengers,  mechanics,  watchmen,  laborers,  or 
other  employees  at  a  different  rate  of  pay  or  in  excess  of 
the  numbers  authorized  by  appropriations  made  by  Con- 
gress, be,  and  they  are  hereby,  repealed  j  and  thereafter  all 

civil  officers,  Details  of  civil  officers,  clerks,  or  other  subordinate  cm- 

etc.,    elsewhere 

employed,  not  to  piovees  from  places  outside  of  the  District  of  Columbia  for 

be  detailed   for1      J 

duty>  witllin  tne  District  of  Columbia,  except  temporary  de 
tails  for  duty  connected  with  their  respective  offices,  be, 
and  are  hereby,  prohibited;  and  thereafter  all  moneys  ac 
cruing  from  lapsed  salaries,  or  from  unused  appropriations 
Proviso.  for  salaries,  shall  be  covered  into  the  Treasury:  Provided, 
That  the  sums  herein  specifically  appropriated  for  clerical 
or  other  force  heretofore  paid  for  out  of  general  or  specific 
appropriations  may  be  used  by  the  several  heads  of  De- 
partments to  pay  such  force  until  the  said  several  lie&ds  of 
Departments  shall  have  adjusted  the  said  force  hi  accord- 
ance with  the  provisions  of  this  act;  and  such  adjustment 
shall  be  effected  before  October  first,  eighteen  hundred  and 
r-  eighty-two.  And  in  making  such  adjustment  the  employees 
Pr°vided  for  shall,  as  far  as  may  be  consistent  with 
the  interests  of  the  service,  be  apportioned  among  the  sev- 
eral  States  and  Territories  according  to  population:  Pro- 
vided further,  That  any  person  performing  duty  in  any 
capacity  as  officer,  clerk,  or  otherwise  in  any  Department 
at  the  date  of  the  passage  of  this  act  who  has  heretofore 
been  paid  from  any  appropriation  made  for  contingent  ex 
penses  or  for  any  contingent  or  general  purpose,  and  whose 
office  or  place  is  specifically  provided  for  herein,  under  the 
direction  of  the  head  of  that  Department  may  be  continued 
in  such  office,  clerkship,  or  employment  without  a  new  ap- 
pointment thereto,  but  shall  be  charged  to  the  quotas  of 
the  several  States  and  Territories  from  which  they  are  re- 
spectively appointed  and  nothing  herein  shall  be  construed 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  19 

to  repeal  or  modify  section  one  hundred  and  sixty-  six  of 
the  Revised  Statutes  of  the  United  States.1  Sec.  4,  act  of 
August  5,  1882  (22  Stat.  L.,  255). 

ADMINISTRATION   OF   OATHS. 

32.  Any  officer  or  clerk  of  any  of  the    Departments    oaths,  when 
lawfully  detailed   to   investigate  frauds  or  attempts  to  officers8  eetc! 
defraud  on  the  Government,  or  any  irregularity  or  iriifc-  BesfNcA,  a.  2! 
conduct  of   any  officer   or   agent  of  the   United   States,  i',imt'S^.il', 
shall  have  authority  to  administer  an  oath  to  any  wit-  p'sei.  iss,  K.  s. 
ness  attending  to  testify  or  depose  in  the  course  of  such 
investigation. 

33.  No  officer,  clerk,  or  employee  of  any  Executive  De-  £S^S^i 
partment  who  is  also  a  notary  public  or  other  officer  au-  °jjg[g®f  oemcef  to 
thori/ed  to  administer  oaths  shall  charge  or  receive  any  e^oy^8i890  v 
fee  or  compensation  for  administering  oaths  of  office  to  em-  20,  p.  371.' 
ployees  of  such  Department  required  to  be  taken  on  ap- 
pointment or  promotion  therein.     Act  of  August  29,  1890 

(26  Stat.  L.,  371). 

34.  The  chief  clerks  of  the  several  Executive  Depart-  Exce^uetfivceerk^°f 
raents  and  of  the  various  bureaus  and  offices  thereof  in 


Washington,  District  of  Columbia,  are  hereby  authorized 
and  directed,  on  application  and  without  compensation26-?-371- 
therefor,  to  administer  oaths  of  office  to   employees  re- 
quired to  be  taken  on  their  appointment  or  promotion.    Act 
of  August  29,  1890  (26  Stat.  L.,  371). 

LEGAL   HOLIDAYS. 

35.  That  the  employees  of  the  Navy-Yard,  Government   1^er0deis6^  ®JJ£ 
Printing  Office.  Bureau  of  Printing  and  Engraving,  andGoverilment  *° 

receive   pay    for 

all  other  per  diem  employees  of  the  Government  on  duty  certain  holidays. 
at  Washington,  or  elsewhere  in  the  United  States,  shall  6,  isss,  v'.  23,  p! 
be  allowed  the  following  holidays,  to  wit:  The  first  day  of 
January,  the  twenty-second  day  of  February,  the  fourth 
day  of  July,  the  twenty-fifth  day  of  December,  and  such 
days  as  may  be  designated  by  the  President  as  days  for 
national  thanksgiving,  and  shall  receive  the  same  pay  as 
on  other  days.     Joint  res.  No.  5,  January  9,  1885  (23  Stat. 
L.,  516). 

36.  That  all  per  diem  employees  of  the  Government,  on    Per  diem  em- 
duty  at  Washington  or  elsewhere  in  the  United   States,  -pa^ffor  Deea»- 

tion    D  ay   and 
Fourth  of  July. 

'Under  section  4  of  the  act  of  August  5,  J882  (22  Stat.  L.,  255),  no  civil  officer, 
clerk,  draftsman,  copyist,  messenger,  assistant  messenger,  mechanic,  watchman, 
laborer,  or  other  employee  shall  be  employed  at  the  seat  of  Government,  in  any  Ex- 
ecutive Department  or  subordinate  bureau  or  office  thereof,  or  be  paid  from  any  ap- 
propriation made  for  contingent  expenses,  or  for  any  specific  or  general  purpose, 
unless  such  employment  is  authorized  and  payment'  therefor  provided  in  the  law 
granting  the  appropriation.  Ill  Dig.  Compt.  Dec.,  sec.  82,  par.  p,  28.  See,  also,  par. 
23  and  par.  28,  ante. 


20  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

23Ri88?°v62lep' slia11  ke  a^owecl  tne  day  of  each  year  which  is  celebrated 

644.  as  "Memorial"  or  u Decoration  Day"  and  the  fourth  of 

July  of  each  year,  as  holiday,  and  shall  receive  the  same 

pay  as  on  other  days.    Joint  res.  No.  6,  February  23,  1887 

(24  Stat.  £.,  644). 

beLab°nbiicaLif  *^'  ^na^  ^ne  nrs^  Monday  of  September  in  each  year, 
ilfr  /28n°  96  ke*n£  the  dav  celebrated  and  known  as  Labor's  Holiday,  is 
hereby  made  a  legal  public  holiday,  to  all  intents  and  pur- 
poses, in  the  same  manner  as  Christmas,  the  first  day  of 
January,  the  twenty-second  day  of  February,  the  thirtieth 
day  of  May,  and  the  fourth  day  of  July  are  now  made  by 
law  public  holidays.  Act  of  June  28, 1894  (28  Stat.  L.,  96). 

PROSECUTION   OF   CLAIMS. 

subpoenas    to     33,  Any  head  of  a  Department  or  Bureau  in  which  a 

witnesses. 

Feb.  14, 1871,  c.  ciaim  against  the  United  States  is  properly  pending  may 
4i2.8'  P  apply  to  any  judge  or  clerk  of  any  court  of  the  United 

States,  in  any  State,  District,  or  Territory,  to  issue  a 
subpoena  for  a  witness  being  within  the  jurisdiction  of  such 
court,  to  appear  at  a  time  and  place  in  the  subpoena  stated, 
before  any  officer  authorized  to  take  depositions  to  be  used 
in  the  courts  of  the  United  States,  there  to  give  full  and 
true  answers  to  such  written  interrogatories  and  cross- 
interrogatories  as  may  be  submitted  with  tbe  application, 
or  to  be  orally  examined  and  cross-examined  upon  the  sub- 
ject of  such  claim. 

witnesses'     39.  Witnesses  subpoenaed    pursuant  to  the  preceding 
Feb.  H, i87i, c.  section   shall  be  allowed  the   same  compensation   as  is 
412 8'  P*  allowed  witnesses  in  the  courts  of   the  United   States. 

compeiiingtes*     40.  If  any  witness,  after  being  duly  served  with  such 
tx Febyi4,  i87i,  c.  subpoaua,  neglects  or  refuses  to  appear,  or,  appearing,  re- 
4i2.8' lf  v' 16>  p<  fuses  to  testify,  the  judge  of  the  district  in  which  the 
Sec.  186,  R.  s.  subpa}na   issued  may  proceed,  upon   proper  process,  to 
enforce  obedience  to  the  subpoena,  or  to  punish  the  diso- 
bedience, in  like  manner  as  any  court  of  the  United  States 
may  do  in  case  of  process  of  subpoena  ad  testificanduin 
issued  by  such  court. 

a8ris"anece8ibow     ^"  Whenever  anv  head  of  a  Department  or  Bureau 

°bFebeu  i87i  c  navin£  made  application  pursuant  to  section  one  hundred 

5i^s.  3,  v.  16, 'P.  and  eighty-four,  for  a  subpoena  to  procure  the  attendance 

s'ec.  187,  R.  s.  of  a  witness  to  be  examined,  is  of  opinion  that  the  interests 

of  the  United  States  require  the  attendance  of  counsel  at 

the  examination,  or  require  legal  investigation  of   any 

claim  pending  in  his  Department  or  Bureau,  he  shall  give 

notice  thereof  to  the  Attorney-General,  and  of  all  facts 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  21 

necessary  to  enable  tbe  Attorney- General  to  furnish  proper 
professional  service  in  attending  such  examination,  or  mak- 
ing such  investigation,  and  it  shall  be  the  duty  of  the 
Attorney-General  to  provide  for  such  service. 

42.  In  all  suits  brought  against  the  United  States  in  the    Evidence  to  be 
Court  of  Claims  founded  upon  any  contract,  agreement.  Departments  m 

?  suits  pending  in 

or  transaction  with  any  Department,  or  any  Bureau,  officer,  the  Court  of 
or  agent  of  a  Department,  or  where  the  matter  or  thing  on  june'25,  ises,  c. 
which  the  claim  is  based  has  been  passed  upon  and  decided  71s£c6.'i88^£  'I.' 
by  any  Department,  Bureau,  or  officer  authorized  to  adjust 
it,  the  Attorney-General  shall  transmit  to  such  Depart- 
ment, Bureau,  or  officer,  a  printed  copy  of  the  petition 
filed  by  the  claimant,  with  a  request  that  the  Department, 
Bureau,  or  officer,  shall  furnish  to  the  Attorney-General 
all  facts,  circumstances,  and  evidence  touching  the  claim 
in  the  possession  or  knowledge  of  the  Department,  Bureau, 
or  officer.  Such  Department,  Bureau,  or  officer  shall, 
without  delay,  and  within  a  reasonable  time,  furnish  the 
Attorney-General  with  a  full  statement,  in  writing,  of  all 
such  facts,  information,  and  proofs.  The  statement  shall 
contain  a  reference  to  or  description  of  all  such  official 
documents  or  papers,  if  any,  as  may  furnish  proof  of  facts 
referred  to  in  it,  or  may  be  necessary  and  proper  for  the 
defense  of  the  United  States  against  the  claim,  mentioning 
the  Department,  office,  or  place  where  the  same  is  kept  or 
may  be  procured.  If  the  claim  has  been  passed  upon  and 
decided  by  the  Department,  Bureau,  or  officer,  the  state- 
ment shall  succinctly  state  the  reasons  and  principles  upon 
which  such  decision  was  based.  In  all  cases  where  such 
decision  was  founded  upon  any  act  of  Congress,  or  upon 
any  section  or  clause  of  such  act,  the  same  shall  be  cited 
specifically;  and  if  any  previous  interpretation  or  con- 
struction has  been  given  to  such  act,  section,  or  clause  by 
the  Department,  Bureau,  or  officer,  the  same  shall  be  set 
forth  succinctly  in  the  statement,  and  a  copy  of  the  opinion 
filed,  if  any,  shall  be  annexed  to  it.  Where  any  decision 
in  the  case  has  been  based  upon  any  regulation  of  a  Depart- 
ment, or  where  such  regulation  has,  in  the  opinion  of  the 
Department,  Bureau,  or  officer  transmitting  such  state- 
ment, any  bearing  upon  the  claim  in  suit,  the  same  shall 
be  distinctly  quoted  at  length  in  the  statement.  But  where 
more  than  one  case,  or  a  class  of  cases,  is  pending,  the 
defense  to  which  rests  upon  the  same  facts,  circumstances, 
and  proofs,  the  Department,  Bureau,  or  officer  shall  only 
be  required  to  certify  and  transmit  one  statement  of  the 
same,  and  such  statement  shall  be  held  to  apply  to  all  such 


22 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Employment  of 
attorneys  or 
counsel. 

June  22, 1870,  c. 
150,  s».  17,  v.  16,  p. 
164. 

Sec.  189,  R.  S. 

Persons  form- 
erly in  the  De- 
partments not  to 
prosecute  claims 
in  them. 

June  1,  1872,  c. 
256,  s.  5,  v.  17,  p. 
202. 

Sec.  190,  R.  S. 


Purchases 
from  contingent 
funds. 

Aug.  26, 1842,  c. 
202,  s.  19,  v.  5,  p. 
527. 

Sec.  3683,  R.S. 


Expenditure 
for  newspapers. 

Aug.  26, 1842,c. 
202,  s.  16,  v.  5,  p. 
526. 

Sec.  192,  R.  S. 


Annual  report 
of  expenditure 
of  contingent 
funds. 

Aug.  26, 1842,c. 
202,  8.  20,  v.  5,  p. 
527. 

Sec.  193,  R.  S. 


cases,  as  if  made  out,  certified,  and  transmitted  in  each 
case  respectively.1 

43.  No  head  of  a  Department  shall  employ  attorneys  or 
counsel  at  the  expense  of  the  United  States;  but  when  in 
need  of  counsel  or  advice,  shall  call  upon  the  Department 
of  Justice,  the  officers  of  which  shall  attend  to  the  same.2 

44.  It  shall  not  be  lawful  for  any  person  appointed  after 
the  first  day  of  June,  one  thousand  eight  hundred  and 
seventy-two,  as  an  officer,  clerk,  or  employee  in  any  of  the 
Departments,  to  act  as  counsel,  attorney,  or  agent  for 
prosecuting  any  claim  against  the  United  States  which  was 
pending  in  either  of  said  Departments  while  he  was  such 
officer,  clerk,  or  employee,  nor  in  any  manner,  nor  by  any 
means,  to  aid  in  the  prosecution  of  any  such  claim,  within 
two  years  next  after  he  shall  have  ceased  to  be  such  officer, 
clerk,  or  employee. 

CONTINGENT  FUNDS. 

45.  No  part  of  the  contingent  fund  appropriated  to  any 
Department,  Bureau,  or  office,  shall  be  applied  to  the  pur- 
chase of  any  articles  except  such  as  the  head  of  the  De- 
partment shall  deem  necessary  and  proper  to  carry  on  the 
business  of  the  Department,  Bureau,  or  office,  and  shall, 
by  written  order,  direct  to  be  procured.3 

46.  The  amount  expended  in  any  one  year  for  newspa- 
pers, for  any  Department,  except  the  Department  of  State, 
including  all  the  Bureaus  and  offices  connected  therewith, 
shall  not  exceed  one  hundred  dollars.    And  all  newspapers 
purchased  with  the  public  money  for  the  use  of  either  of 
the    Departments  must   be   preserved   as   files   for  such 
Department. 

47.  The  head  of  each  Department  shall  make  an  annual 
report  to  Congress,  giving  a  detailed  statement  of  the 
manner  in  which  the  contingent  fund  for  his  Department, 
and  for  the  Bureaus  and  offices  therein,  has  been  expended, 
giving  the  names  of  every  person  to  whom  any  portion 
thereof  has  been  paid;  and  if  for  anything  furnished,  the 
quantity  and  price;  and  if  for  any  service  rendered,  the 
nature  of  such  service,  and  the  time  employed,  and  the  par- 


>  See  the  title  "  The  Court  of  Claims"  in  the  chapter  entitled  THE  DEPARTMENT  OF 
JUSTICE. 

2  See  Chapter  VII  and  par.  41  ante. 

3  Section  3683,  Revised  Statutes,  requires  that  the  written  order  therein  mentioned 
shall  be  given  by  the  head  of  the  Department  before  the  articles  to  be  paid  for  from 
the  contingent  fund  are  procured,  and  a  subsequent  approval  is  not  sufficient. 
II  Dig.  Compt.  Dec.,  1.    This  section  applies  only  to  cases  where  an  appropriation 
is  made  in  a  lump  sum  for  "  contingent,  incidental,  or  miscellaneous  expenses,"  or 
under  similar  words,  and  where  Congress  has  specifically  designated  appropriations 
for  enumerated  items  as  being  for  "contingent,   incidental,  or  miscellaneous  ex- 
penses."   Ibid,  42.    When  an  item  is  properly  payable  from  an  appropriation  for 
contingent  expenses,  the  discretion  of  the  officer  charged  with  the  duty  of  expend- 
ing said  fund  is  not  subject  to  review  by  the  accounting  officers  upon  any  question 
as  to  the  necessity  or  advisability  of  Ms  expenditures.    Ibid,  80. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  23 

ticular  occasion  or  cause,  iii  brief,  that  rendered  such  serv- 
ice necessary;  and  the  amount  of  all  former  appropriations 
in  each  case  on  hand,  either  in  the  Treasury  or  in  the  hands 
of  any  disbursing  officer  or  agent.  And  he  shall  require  of 
the  disbursing  officers,  acting  under  his  direction  and  au- 
thority, the  return  of  precise  and  analytical  statements  and  - 
receipts  for  all  the  moneys  which  may  have  been  from  time 
to  time  during  the  next  preceding  year  expended  by  them, 
and  shall  communicate  the  results  of  such  returns  and  the 
sums  total,  annually,  to  Congress. 


48.  That  it  shall  be  the  duty  of  the  heads  of  the  several    Annual  estt- 
Executive  Departments,  and  of  other  officers  authorized  men?' of°  condi- 
or  required  to  make  estimates,  to  furnish  to  the  Secretary  t'o  be°submitted8 
of  the  Treasury,  on  or  before  the  first  day  of  October  of^SS^^im,  ?f 
each  year,  their  annual  estimates  for  the  public  service,  18'sec!7<7,  act  of 
to  be  included  in  the  Book  of  Estimates  prepared  by  law  ^ap- Jos.1895'  v* 
under  his  direction  ;  and  the  Secretary  of  the  Treasury 

shall  submit,  as  part  of  the  appendix  to  the  Book  of  Esti- 
mates, such  extracts  from  the  annual  reports  of  the  several 
heads  of  Departments  and  Bureaus  as  relate  to  estimates 
for  appropriations,  and  the  necessities  therefor.  Sec. «?,  act 
of  March  3,  1875  (18  Mat.  £.,  370).  It  shall  be  the  duty  of 
the  head  of  each  Executive  Department  or  other  Govern- 
ment establishment  in  the  city  of  Washington  to  submit  to 
the  first  regular  session  of  the  Fifty  fourth  Congress,  and 
annually  thereafter,  in  the  Annual  Book  of  Estimates,  a 
statement  as  to  the  condition  of  business  in  his  Department 
or  other  Government  establishment,  showing  whether  any 
part  of  the  same  is  in  arrears,  and,  if  so,  in  what  divisions 
of  the  respective  bureaus  and  offices  of  his  Department  or 
other  Government  establishment  such  arrears  exist,  the 
extent  thereof,  and  the  reasons  therefor,  and  also  a  state- 
ment of  the  number  and  compensation  of  employees  appro- 
priated for  in  one  bureau  or  office  who  have  been  detailed 
to  another  bureau  or  office  for  a  period  exceeding  one  year.1 
Sec.  7,  act  of  March  2, 1895  (28  8tat.  L.,  808). 

49.  The  head  of  each  Department  shall  make  an  annual    Report   of 

clerks  employed. 

report  to  Congress  of  the  names  of  the  clerks  and  other  ^Aug.  26,^42,  c. 

persons  that  have  been  employed  in  his  Department  and  525! 

the  offices  thereof;  stating  the  time  that  each  clerk  or  other 

person  was  actually  employed,  and  the  sums  paid  to  each; 

also,  whether  they  have  been  usefully  employed;  whether 

the  services  of  any  of  them  can  be  dispensed  with  without 

'See,  also,  in  connection  with  the  preparation  and  submission  of  annual  estimates, 
paragraphs  166-174  post. 


24 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


ing      nuaimre" 
p°see  all  acts  re 


lviipii 
sec.  196, 


E.  s. 


detriment  to  the  public  service,  and  whether  the  removal 
of  any  individuals,  and  the  appointment  of  others  in  their 
stead,  is  required  for  the  better  dispatch  of  business. 

50<  Except  where  a  different  time  is  expressly  prescribed 
^  law,the  various  annual  reports  required  to  be  submitted 
ng  reports,  to  Congress  by  the  heads  of  Departments  shall  be  made  at 
the  commencement  of  each  regular  session,  and  shall  em- 
brace the  transactions  of  the  preceding  year. 

epar™trteo  81.  The  head  of  each  Department,  except  the  Depart- 
to  ment  of  Justice,  shall  furnish  to  the  Congressional  Printer 
june25,  1864,  c.  copies  of  the  documents  usually  accompanying  his  annual 
5'  isVv!'  Jun3e  report,  on  or  before  the  first  day  of  November  in  each  year, 
.'  8'and  a  copy  of  his  annual  report  on  or  before  the  third 

jy[on(jay  of  November  in  each  year. 
inventories  of     52.  The  Secretary  of  State,  the  Secretary  of  the  Treas- 
prjufyiy5;i87o,c.ury,  the  Secretary  of  the  Interior,  the  Secretary  of  War, 
&*&$£&**  Secretary  of  the  Navy,  the  Postmaster-General,  the 
c<  s*1  v'i  J7P'iMs'  Attorney-General,  and  Commissioner  of  Agriculture  shall 
keep,  in  proper  books,  a  complete  inventory  of  all  the 
property  belonging  to  the  United  States  in  the  buildings, 
rooms,  offices,  and  grounds  occupied  by  them,  respectively, 
and  under  their  charge,  adding  thereto,  from  time  to  time, 
an  account  of  such  property  as  may  be  procured  subse- 
quently to  the  taking  of  such  inventory,  as  well  as  an 
account  of  the  sale  or  other  disposition  of  any  of  such  prop- 
erty, except  supplies  of  stationery  and  fuel  in  the  public 
offices  and  books,  pamphlets,  and  papers  in  the  Library  of 
Congress. 

Biennial  lists     53.  The  head  of  each  Department  shall,  as  soon  as 
practicable  after  the  last  day  in  June  in  each  year  in 
a  new  Congress  is  to  assemble,  cause  to  be  filed 
Department  of  the  Interior  a  full  and  complete  list 
°fficers>  agents,  clerks,  and  employees  employed  in 
1832,  Res^No^ii',  his  Department,  or  in  any  of  the  offices  or  Bureaus  con- 
is,  1877,  v.'2o,ep.  nected  therewith.    He  shall  include  in  such  list  all  the  sta- 
sec.  198,  B.  s.  tistics  peculiar  to  his  Department  required  to  enable  the 
Secretary  of  the  Interior  to  prepare  the  Biennial  Register. 
Report  to^con-     54.  it  shall  be  the  duty  of  the  heads  of  the  several 
estimates,  of  Executive  Departments  to  submit  to  Congress  each  year, 
etc!  "         e  '  in  the  annual  estimates  of  appropriations,  a  statement  of 
22^ar552.1883'  v'the  number  of  buildings  rented  by  their  respective  De- 
partments, the  purposes  for  which  rented,  and  the  annual 
rental  of  each.     Act  of  March  3,  1883  (22  Stat.  L.,  552}. 

55.  it  shall  be  the  duty  of  the  heads  of  the  several 
Executive  Departments  of  the  Government  to  report  to 
efficiency/  °  Congress  each  year  in  the  annual  estimates  the  number  of 
employees  in  each  bureau  and  office  and  the  salaries  of  each 
who  are  below  a  fair  standard  of  efficiency.  Sec.  2,  act  of 
July  11,  1890  (26  Stat.  £.,  268). 


be  fi 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  25 

MISCELLANEOUS   PROVISIONS. 

56.  That  all  executive  officers  or  employees  of  the  United    Requesting, 
States  not  appointed  by  the  President,  with  the  advicetions 
and  consent  of  the  Senate,  are  prohibited  from  requesting? 


giving  to,  or  receiving  from,  any  other  officer  or  employ  ee 

of  the  Government,  any  money  or  property  or  other  thing1876|Vtl9'p>169 

of  value  for  political  purposes;   and  any  such  officer  or 

employee,  who  shall  offend  against  the  provisions  of  this 

section  shall  be  at  once  discharged   from  the  service  of 

the  United  States;  and  he  shall  also  be  deemed  guilty  of 

a  misdemeanor,  and  on  conviction  thereof  shall  be  fined 

in  a  sum  not  exceeding  five  hundred  dollars.     Sec.  6,  act 

of  August  15,  1876  (19  Stat.  L.,  169). 

57.  That  hereafter  no  building  owned,  or  used  for  public    Draping  pub- 
purposes,  by  the  Government  of  the  United  States,  shall  mourner™" 
be  draped  in  mourning  and  no  part  of  the  public  fund  shall  hlse^d3,  Mar,  3, 
be  used  for  such  purpose.     Sec.  5,  act  of  March  3,  i893im^.ii,v.i\!>: 
(27  Stat.  L.,  715). 

58.  That  hereafter  the  Executive  Departments  of  the    closing  De- 
Government  shall  not  be  closed  as  a  mark  to  the  memory  deceased11 


of  any  deceased  ex-official  of  the  United  States.     Sec.  4, 
act  of  March  3,  1893  (27  Stat.  L.,  715).  1893,  v.  27,  P.  715. 

59.  That  the  Secretaries,  respectively,  of  the  Depart-    Official  postage 
ments  of  State,  of  the  Treasury,  War,  Navy,  and  of  the  In-  paXentaTuse.6 
terror,  and  the  Attorney-General,  are  authorized  to  makeisfsTv.  22,^563?' 
requisitions  upon  the  Postmaster-General  for  the  necessary 
amount  of  official  postage  stamps  for  the  use  of  their  De- 
partments, not  exceeding  the  amount  stated  in  the  estimates 
submitted  to  Congress;  and  upon  presentation  of  proper 
vouchers  therefor  at  the  Treasury,  the  amount  thereof  shall 
be  credited  to  the  appropriation  for  the  service  of  the  Post- 
Office  Department  for  the  same  fiscal  year.1     Sec.  2,  act  of 
March  3,  1883  (22  Stat.  L.,  563). 


60.  And  it  shall  be  the  duty  of  the  respective  Depart-    Penalty 

.  A  opes  for  mclos  tire 

ments  to  inclose  to  Senators,  Representatives,  and  Dele-  of  answers  to  of- 

*.        *      **  •         1  1      /v»    •    i  ...  ..        ficial    communi- 

gates  in  Congress,  in  all  official  communications  requiring  cations. 
answers,  or  to  be  forwarded  to  others,  penalty  envelopes    Sec>2'i6id- 
addressed  as  far  as  practicable,  for  forwarding  or  answer- 
ing such  official  correspondence.1     Sec.  2,  act  of  March  3, 
1883  (22  Stat.  L.,  563). 

61.  Hereafter  no  contract  shall  be  made  for  the  rent  of   Nocontractsto 

...  n  .  be  made  for  rent 

any  building,  or  part  of  any  building,  in  Washington,  not  of  any  building 
now  in  use  by  the  Government,  to  be  used  for  the  purposes  without8  kppn£ 
of  the  Government  until  an  appropriation  therefor  shall  gJfS£ 
have  been  made  in  terms  by  Congress.     Act  of  June  ^, 
1874  (18  Stat.  L.,  144). 

1  For  pro  vision  a  of  statutes  relating  to  the  free  transmission  of  official  mail  matter 
see  Chapter  VI,  THE  POST-OFFICE  DEPARTMENT. 


CHAJPTKR    III. 


THE  DEPARTMENT  OF  WAR. 


Par. 

62.  Establishment  of  the  Depart- 

ment of  War. 

63.  Assistant  Secretary  of  War  to 

"be  appointed. 

64.  Subordinate  officers. 

65.  Chief  clerk. 

66.  Management   of    military   af- 

fairs. 

67.  Custody  of  departmental  rec- 

ords and  property. 

68.  Collecting  flags. 

69.  Purchase    and  transportation 

of  supplies. 

70.  Transportation  of  troops. 

71.  Construction  of  new  lines  of 

telegraph. 

72.  Loss    of    certificate    of    dis- 

charge. 


Par. 

73.  Affidavits  may  be  received  in 

settlement  of  account  soi'com- 
pauy  commanders  for  cloth- 
ing, etc. 

74.  Power  to  administer  oaths. 

75.  Surplus  charts  may  bo  sold. 
70.  Surplus  maps  and  publications 

of  Signal  Office  may  be  sold. 

77.  Report  of  unexpended  balances. 

78.  Annual  statement  of  expendi- 

tures of  appropriation  for 
contingent  expenses. 

79.  Report  of  bids  for  works. 

80.  Report  of  examinations  of  river 

and  harbor  improvements. 

81.  Returns  of  the  militia. 

82.  Assignment  of  rooms  in  State, 

War,  and  Navy  building. 
82a.  Disposition  of  useless  papers. 


20,  p.  17. 
Salary. 


Duties. 


Establishment     gg   There  shall  be  at  the  seat  of  Government  an  Execu- 

of    the    Depart- 

me'ec°2iTaR  s  ^ve  Department  to  be  known  as  the  Department  of  War, 

and  a  Secretary  of  War,  who  shall  be  the  head  thereof.1 

Assistant  Sec-     63.  There  shall  be  in  the  Department  of  War  an  Assist- 

retary  of  War  to 

be  appointed,  ant  Secretary  of  War,  who  shall  be  appointed  by  the 
^' President,  by  and  with  the  advice  and  consent  of  the 
Senate,  and  shall  be  entitled  to  a  salary  of  four  thousand 
five  hundred  dollars  a  year,  payable  monthly,  and  who 
shall  perform  such  duties  in  the  Department  of  War  as 
shall  be  prescribed  by  the  Secretary  or  may  be  required 
by  law.2  Act  March  5, 1890  (26  Stat.  L.,  17). 

1  The  Department  of  War  and  the  office  of  Secretary  of  War  were  created  by  the 
act  of  August  7,  1789  (1  Stat.  L.,  49).    The  Secretary  of  War  succeeded  to  the  office 
and  functions  of  the  Secretary  at  War.  whose  powers  and  duties  were  denned  in  an 
ordinance  of  Congress  dated  January  27,  1785  (1  Stat.  L.,  49,  note  b).     The  office  of 
Secretary  of  War  included  that  of  Secretary  of  the  Navy  until  April  30, 1798,  when  the 
Department  of  the  Navy  was  established,  and  so  much  of  the  act  of  August  7,  1789, 
as  imposed  duties  upon"  the  Secretary  of  War  in  connection  therewith  was  repealed 
(1  Stat.  L.,  553).    For  statutory  provisions  respecting  a  temporary  vacancy  in  the 
office  of  Secretary  of  War  see  paragraphs  7  to  14,  ante. 

2  The  act  of  August  5,  1882,  authorizing  the  appointment  of  an  Assistant  Secretary 
of  War  was  repealed  by  the  act  of  July  7, 1884  (23  Stat.  L.,  331),  the  power  conferred 
by  the  act  of  August  5,  1882,  never  having  been  exercised.    In  the  case  of  Ryan  v. 
TJ.  S.,  136  TJ.  S.,  18,  80,  it  was  held  that  the  authority  vested  in  the  Secretary  of  War 
could  in  his  absence  be  exercised  by  the  officer  who  under  the  law  became  for  the 
time  acting  Secretary  of  War. 

26 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES  27 

64.  There  shall  be  in  the  Department  of  War:  Subordinate of- 


One  chief  clerk  of  the  Department,  at  a  salary  of  two  10Mar- 3- 1853- v- 
thousand  live  hundred  dollars  a  year.1  sec.  215,  n.s. 

One  disbursing  clerk. 

[One  superintendent  of  the  War  Department  building, 
at  a  salary  of  two  hundred  and  fifty  dollars  a  year.] 2 

In  the  office  of  the  Adjutant- General: 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

Iii  the  office  of  the  Quartermaster-General: 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

[One  superintendent  of  the  building,  at  a  salary  of  two 
hundred  dollars  a  year.  (See  sees.  169, 173, 174, 176,  R.  &)] 2 

In  the  office  of  the  Paymaster-General: 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

[One  superintendent  of  the  building  occupied  by  the 
Paymaster- General,  at  a  salary  of  two  hundred  and  fifty 
dollars  a  year.] 2 

In  the  office  of  the  Commissary-General: 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

[One  superintendent  of  building  at  corner  of  Seven- 
teenth and  F  streets,  at  a  salary  of  two  hundred  and  fifty 
dollars  a  year.] 2 

In  the  office  of  the  Surgeon-General : 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

In  the  office  of  the  Chief  of  Engineers : 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

In  the  office  of  the  Chief  of  Ordnance : 
One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 

In  the  office  of  Military  Justice : 

One  chief  clerk,  at  a  salary  of  two  thousand  dollars  a 
year. 
65.  There  shall  be  in  the  said  Department  an  inferior    chief  clerk. 

Feb.  27, 1877,  v. 

officer,  to  be  appointed  by  the  said  principal  officer  to  be  w,  p.  241. 
employed  therein  as  he  shall  deem  proper,  and  to  be  called 

'The  present  composition  of  the  clerical  force  of  the  War  Department  proper  is  as 
follows:  One  chief  clerk,  $2,500;  1  disbursing  clerk,  $2,000;  ij  chiefs  of  division,  at 
$2,000each;  1  stenographer,  $1,800;  5  clerks  of  class  4 ;  clerk  to  Assistant  Secretary, 
$1,800 ;  5  clerks  of  class  3 ;  9  clerks  of  class  2 ;  12  clerks  of  class  1 ;  4  clerks,  at  $1.000 
each;  4  messengers ;  7  assistant  messengers;  8  laborers;  1  carpenter  and  foreman  of 
laborers,  at  $1,000  each;  2  carpenters,  at  $900  each;  1  hostler,  $600;  2  hostlers  and 
1  watchman,  at  $540  each.  Act  of  May  28,  1896  (29  Stat.  L.,  161). 

1The  offices  included  in  brackets  have  ceased  to  exist. 


28  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  chief  clerk  in  the  Department  of  War,  and  who,  when- 
ever the  said  principal  officer  shall  be  removed  from  office 
by  the  President  of  the  United  States,  or  in  any  other 
case  of  vacancy,  shall,  during  such  vacancy,  have  the 
charge  and  custody  of  all  records,  books,  and  papers 
appertaining  to  the  said  Department.1  Act  of  February 
27,  1877  (19  8tat.  L.,  241). 

ofmUiffr**af      ^'  ^^e  Secretary  °^  War  shall  perform  such  duties  as 
fairs.  shall  from  time  to  time  be  enjoined  on  or  intrusted  to  him 

Aug.  7,  1789,  c. 

7,s.i,v.i,p.^9.   by  the  President  relative  to  military  commissions,  the  mili- 

'  tary  forces,  the  warlike  stores  of  the  United  States,  or  to 

other  matters  respecting  military  affairs  5  and  he  shall  con- 

duct the  business  of  the  Department  in  such  manner  as  the 

President  shall  direct.2    (See  sees.  3660-3665,  3669,  R.  8.} 

Secretary  °^  War  shall  have  the  custody  and 


records  and  prop-  charge  of  all  the  books,  records,  papers,  furniture,  fixtures, 
Aiig,  7,  1789,  c.  and  other  property  appertaining  to  the  Department. 
1  sec.'  21  7,  'R.  s.'     68.  The  Secretary  of  War  shall  from  time  to  time  cause 
flags?  etc6  °     lg  to  be  collected  and  transmitted  to  him,  at  the  seat  of  Gov- 
c.  78^8.  i,V.  s,  p'.ernment,  all  such  flags,  standards,  and  colors  as  are  taken 
13|'ec.  sis,  E.  s.  by  the  Army  from  the  enemies  of  the  United  States. 


69.  The  Secretary  of  War  shall  from  time  to  time  define 
;es3*  1813)  c.  and  prescribe  the  kinds  as  well  as  the  amount  of  supplies 
48^8.  5,  v.  2,  p.  fo  |3e  plircijasec[  by  the  Subsistence  and  Quartermaster 
sec.  2i9,B.s.  Departments  of  the  Army,  and  the    duties   and  powers 


sup 
Ear 


1  See  paragraphs  15-17  and  34  for  the  general  powers  and  duties  of  chief  clerks. 

2The  Secretary  of  War  is  the  regular  constitutional  organ  of  the  President  for  the 
administration  of  the  military  establishment  of  the  nation ;  and  rules  and  orders 
publicly  promulgated  through  him  must  be  received  as  the  acts  of  the  Executive  and, 
as  such,  be  binding  upon  all  within  the  sphere  of  his  legal  and  constitutional 
authority.  Such  regulations  can  not  be  questioned  or  defied  because  they  may  be 
thought  unwiseor  mistaken.  The  right  of  so  considering  and  treating  the  authority 
of  the  Executive,  vested  as  it  is  with  the  command  of  the  military  and  naval  forces, 
could  not  be  intrusted  to  officers  of  any  grade  inferior  to  the  Commander  in  Chief; 
its  consequence,  if  tolerated,  would  be  a  complete  disorganization  of  both  the  Army 
and  Navy.  U.  S.  v.  Eliason,  1C  Pet.,  291,  302;  Wilcox  v.  Jackson,  13  Pet.,  498,  513; 
Wolsey  v.  Chapman,  101  U.  S.,  755;  Runkle  v.  U.  S.,  122  U.  S.,  543,  557;  U.  S.  v.  Adams, 
7  Wall.,  463.  The  Secretary  of  War  is  not  required  to  perform  duties  in  the  lield- 
He  does  not  compose  any  part  of  the  Army,  and  has  no  service  to  perform  that  may 
not  be  done  at  the  seat*  of  Government.  1  Opin.  Att.  Gen.,  457;  U.  S.  v.  Burns,  12 
Wall,  246 ;  see,  also,  note  2  to  par.  5,  and  the  title  Bridges  over  the  navigable  waters 
of  the  United  States,  in  the  chapter  entitled  THE  CORPS  OF  ENGINEERS. 

Duties  imposed  by  statute.— In  addition  to  his  duties  as  the  constitutional  organ  of 
the  President  for  the  administration  of  the  military  establishment,  the  Secretary  of 
War  is,  by  other  statutes,  charged  with  the  supervision  of  the  administration  of  the 
several  bureaus  or  offices  of  the  War  Department,  their  estimates,  contracts,  expend- 
itures, reports  and  returns  being  under  his  sole  direction  and  control.  He  has  also 
been  charged,  from  time  to  time,  with  the  execution  of  laws  relating  to  national 
cemeteries,  the  Soldiers'  Home,  the  National  Home  for  Disabled  Volunteer  Soldiers, 
the  Military  Prison,  the  detail  of  officers  to  colleges,  the  distribution  of  relief  to  suf- 
ferers by  fire,  flood,  or  by  the  failure  of  crops,  due  to  drought  or  other  causes,  the 
construction  and  operation  of  canals,  roads,  and  lines  of  telegraph,  the  location  and 
and  construction  of  bridges  over  the  navigable  waters  of  the  United  States,  of  rail- 
roads through  the  public  lands,  the  protection  of  settlers  and  emigrants,  the  estab- 
lishment of  harbor  lines,  the  adjustment  of  claims,  the  establishment  and  mainte- 
nance of  national  military  parks,  and  the  location,  marking,  and  preservation  of  lines 
of  battle  on  the  battlefields  of  the  civil  war.  Since  the  act  of  June  28,  1864,  all 
statutes  authorizing  the  construction  of  works  of  river  and  harbor  improvement 
have  contained  the  provision  that  the  sums  appropriated  shall  be  expended  under 
his  direction.  The  Military  Academy,  and  the  schools  of  application  at  Willetts 
Point,  Fortress  Monroe,  and  at  Forts  Leavenworth  aDdlliley  are  also  carried  on  under 
the  immediate  supervision  of  the  Secretary  of  War.  By  the  act  of  April  10, 1878,  the 
Secretary  of  War  is  authorized  to  prescribe  rules  and  regulations  to  be  observed  in  the 
preparation,  submission,  and  opening  of  bids  for  contracts  under  the  War  Depart- 
ment. See  also  pars.  5  and  6,  and  notes  thereunder  for  general  provisions  respecting 
the  powers  and  duties  of  the  heads  of  the  several  Executive  Departments. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  29 

thereof  respecting  such  purchases;  and  shall  prescribe 
general  regulations  for  the  transportation  of  the  articles 
of  supply  from  the  places  of  purchase  to  the  several  armies, 
garrisons,  posts,  and  recruiting  places,  for  the  safe-keeping 
of  such  articles,  and  for  the  distribution  of  an  adequate 
and  timely  supply  of  the  same  to  the  regimental  quarter- 
masters, and  to  such  other  officers  as  may  by  virtue  of  such 
regulations  be  intrusted  with  the  same;  and  shall  fix  and 
make  reasonable  allowances  for  the  store  rent  and  storage 
necessary  for  the  safe-keeping  of  all  military  stores  and 
supplies. 

70.  The   transportation    of  troops,    munitions  of    war,  of^™J8j^j:5tipn 
equipments,  military  property,  and  stores,  throughout  the  15J^-43£  ^2,  c- 
United  States,  shall  be  under  the  immediate  control  and  334.  ' 
supervision  of  the  Secretary  of  War  and  such  agents  as  he 

may  appoint. 

71.  That  the  construction  of  new  lines  of  telegraph  shall    Construction 

of  new  lines  of 

be  under  the  supervision  and  direction  of  the  several  mili-  telegraph,  etc. 

June  20,  1878,  v. 

tary  commanders,  subject  to  the  approval  of  the  Secretary  20,  P.  219. 
of  War.1     Act  of  June  20.  1878  (20  Stat.  L.,  219). 

72.  Whenever  satisfactory  proof  is  furnished  to  the  War  Caje°08f8^cf1^fi 
Department  that  any  non-commissioned  officer  or  private  24JIgr'1  V8i7'p' 
soldier  who  served  in  the  Army  of  the  United  States  in  the  58|ec>  gg4  E  ^ 
late  war  against  the  rebellion  has  lost  his  certificate  of  dis- 

charge, or  the  same  has  been  destroyed  without  his  privity 
or  procurement,  the  Secretary  of  War  shall  be  authorized 
to  furnish,  on  request,  to  such  11011-  commissioned  officer  or 
private  a  duplicate  of  such  certificate  of  discharge,  to  be 
indelibly  marked,  so  that  it  may  be  known  as  a  duplicate; 
but  such  certificate  shall  not  be  accepted  as  a  voucher  for 
the  payment  of  any  claim  against  the  United  States  for 
pay,  bounty,  or  other  allowance,  or  as  evidence  in  any  other 
case. 

73.  In  settling  the  accounts  of  the  commanding  officer 
a  company  for  clothing  and  other  military  supplies, 


affidavit  of  any  such  officer  may  be  received  to  show  the  p»»y  command- 

ers for  clothing, 

loss  of  vouchers  or  company  books,  or  any  matter  of  cir-  etc. 
cumstance  tending  to  prove  that  any  apparent  deficiency  v.  10,  p.  241. 
was  occasioned  by  unavoidable  accident  or  lost  in  actual 

3  The  act  of  October  1,  1890,  provides  that  "the  civilian  duties  now  performed  by 
the  Signal  Corps  of  the  Army  shall  hereafter  devolve  upon  a  bureau,  which,  on  or 
after  July  first,  eighteen  hundred  and  ninety-one,  shall  be  established  in  the  De- 
partment of  Agriculture,  and  the  Signal  Corps  of  the  Army  shall  remain  a  part  of 
the  military  establishment,  under  the  direction  of  the  Secretary  of  War,  and  all  esti- 
mates for  its  support  shall  be  included  with  other  estimates  for  the  support  of  the 
military  establishment."  Vol.  26,  Stat.  L.,  ch.  1266,  p.  653.  This  statute  operates  to 
repeal  so  much  of  sections  221,  222,  and  223  of  the  Revised  Statutes  as  imposed  duties 
upon  the  Secretary  of  War  and  the  Chief  Signal  Officer  in  connection  with  the  obser- 
vation and  report  of  storms,  leaving  under  their  direction  such  duties,  in  connection 
with  the  construction  and  repair  of  military  telegraph  lines  as  were  imposed  by  the 
acts  of  March  3,  1875,  18  Stat,  L.,  p.  388;  and  June  20,  1878,  20  Stat,  L.,  p.  219."  See 
chapter  entitled  THE  SIGNAL  DEPARTMENT,  post. 


30  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

service,  without  any  fault  on  his  part,  or  that  the  whole  or 
any  part  of  such  clothing  and  supplies  had  been  properly 
and  legally  used  and  appropriated;  and  such  affidavit  may 
be  considered  as  evidence  to  establish  the  facts  set  forth, 
with  or  without  other  evidence,  as  may  seem  to  the  Secre- 
tary of  War  just  and  proper  under  the  circumstances  of 
the  case. 
Power  to  ad-  74.  The  Secretary  of  War  is  authorized  to  detail  one  or 

minister  oaths. 

Mar.  3,  1865,  c.  more  of  the  employees  of  the  War  Department  for  the  pur- 

491?'  2  P  pose  of  administering  the  oaths  required  by  law  in  the  set- 

S'  tleinent  of  officers'  accounts  for  clothing,  camp  and  garrison 

equipage,    quartermaster's    stores,   and   ordnance,  which 

oaths  shall  be  administered  without  expense  to  the  parties 

taking  them. 

surplus  charts     75.  Any  surplus  charts  of  the  northwestern  lakes  may  be 

may  ho  sold. 

Mar.  3,  1869,  c.  soid  to  navigators  upon  such  terms  as  the  Secretary  of 

122,e.l,v.l5,pp. 

301,  303.  War  may  prescribe. 

sur'pinsmaps     76.  The  Chief  Signal-Officer  may  cause  to  be  sold  any 

o?  d^ignaicaoffice  surplus  maps  or  publications  of  the  Signal-Office,  the  money 

mJLr?3,°i873,c.  received  therefor  to  be  applied  toward  defraying  the  ex- 

(527)V'  17'  p'  51°penses  of  the  signal-service;  and  an  account  of  the  same 

sec.  227,  R.S.  shan  be  rendered  in  each  annual  report  of  the  Chief  of  the 

Signal-  Service.1 

REPORTS. 

Eeport  of  un-     77.  The  Secretary  of  War  shall  make  an  annual  report  to 

expended  bal- 

ances.  Congress  containing  a  statement  ot  the  appropriations  of 

52,8.a2,v.3.p.567';  the  preceding  fiscal  year  for  the  Department  of  War,  show- 

ings. 2,'  v.  is',  p!  ing  the  amount  appropriated  under  each  specific  head  of 

33sec.  228,  R.  g  appropriation,  the  amount  expended  under  each  head,  and 

the  balance  which,  on  the  thirtieth  day  of  June  preceding 

such  report,  remained  unexpended.     Such  reports  shall  be 

accompanied  by  estimates  of  the  probable  demands  which 

may  remain  on  each  appropriation.2 


state-     78.  The  Secretary  of  War  shall  lay  before  Congress,  at 

ment  of  expendi- 

ture of  appropri-  the  commencement  of  each  regular  session,  a  statement  of 

ation  for  contin- 

gent expenses.  the  expenditure  of  the  moneys  appropriated  tor 

28,  sfs,  V.  2,'  p.'  the  contingent  expenses  of  the  military  establishment.3 

53sec.  229,  ii.  s.  Act  of  March  2,  1895  (28  Stat.  L.,  787). 

Eeport  of  bids     79.  Whenever  the  Secretary  of  War  invites  proposals  for 

June23,'i866,  c.  any  works,  or  for  any  materials  or  labor  for  any  work,  he 

73.'  '  - 

Sec.  230,  R.  S.      '  See  note  1  to  par.  71. 

2  See  title  Annual  Reports  in  chapter  entitled  PROVISIONS  APPLICABLE  TO  THE  SEV- 
ERAL EXECUTIVE  DEPARTMENTS. 

3  The  act  of  March  2,  1895,  repeals  so  much  of  this  paragraph  as  requires  the  Sec- 
retary of  War  to  lay  before  Congress,  at  the  commencement  of  each  regular  session, 
a  statement  of  all  contracts  for  supplies  and  services  which  have  been  made  by  him 
or  under  his  supervision  during  the  year  preceding.    28  Stat.  L.,  787. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  31 

shall  report  to  Congress,  at  its  next  session,  all  bids  there- 
for, with  the  names  of  the  bidders. 

80.  The  Secretary  of  War  shall  cause  to  be  prepared  and  wJBKtioBaS 
submitted  to  Congress,  in  connection  with  the  reports  rffJjJJiJjSiSS?" 
examinations  and  surveys  of  rivers  and  harbors  hereafter  R^8ul^0  2776'  ^8JJ- 
made  by  order  of  Congress,  full  statements  of  all  existing  i>- ^- 

Ncc,  L»JI  ,  1C*  N. 

facts  tending  to  show  to  what  extent  the  general  commerce 
of  the  country  will  be  promoted  by  the  several  works  of 
improvements  contemplated  by  such  examinations  and  sur- 
veys, to  the  end  that  public  moneys  shall  not  be  applied 
excepting  where  such  improvements  shall  tend  to  subserve 
the  general  commercial  and  navigation  interests  of  the 
United  States. 

81.  The  Secretary  of  War  shall  lay  before  Congress,  on  mi^^rn8  of  the 
or  before  the  first  Monday  in  February  of  each  year,  an    sec.  232,  R.  s. 
abstract  of  the  returns  of  the  adjutants-general  of  the  sev- 
eral States  of  the  militia  thereof.1 

THE   WAR   DEPARTMENT   BUILDING. 

82.  The  fourth  story  and  attic  of  the  south  wing  of  the 
State,  War,  and  Navy  building,  except  such  portion  as  i 


now  within  the  Library  of  the  State  Department,  are  as-    sec:  e,  Aug.  5, 

1882 ;  v.  22,  p.  256. 

signed  to  the  War  Department  for  such  uses  of  the  Depart- 
ment as  in  the  judgment  of  the  Secretary  of  War  they  may 
be  best  fitted,  and  the  sum  of  one  thousand  dollars,  or  so 
much  thereof  as  may  be  necessary,  is  hereby  appropriated, 
out  of  any  money  not  otherwise  appropriated,  to  be  ex- 
pended under  the  direction  of  the  Secretary  of  State  to 
enable  the  Department  to  remove  from  said  fourth  story 
and  attic  the  records,  documents,  and  papers,  now  stored 
there,  and  to  re-arrange  them  in  other  rooms  in  said  De- 
partment. That  the  partition  wall  separating  the  corridors 
of  the  first,  second,  third,  and  fourth  stories  of  the  East 
wing  from  the  said  stories  of  the  South  wing  of  the  State, 
War,  and  Navy  building  shall  be  removed  so  as  to  afford 
easy  access  from  one  wing  to  the  other  on  the  afore- 
mentioned floors  of  said  building:  Provided,  That  a  joint 
select  committee  of  three  members  of  the  House  of  Repre- 
sentatives and  three  Senators,  to  be  appointed  respectively 
by  the  Speaker  of  the  House  and  the  President  of  the 
Senate,  upon  the  passage  of  this  act,  shall,  on  or  before 
the  completion  of  the  North  wing  of  the  State,  War,  and 


JSce  chapter  entitled  THE  MILITIA.  For  statute  requiring  a  report  of  the  names, 
compensation,  etc.,  of  civil  engineers  employed  on  works  of  river  and  harbor  im- 
provement, to  be  rendered  to  Congress,  annually,  by  the  Secretary  of  War,  see  the 
chapter  entitled  THE  ENGINEER  DEPARTMENT. 


32  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

Navy  building,  make  examination  of  said  building  and  set 
apart  such  portions  thereof  for  the  use  and  occupancy  of 
the  State,  War,  and  Navy  Departments  respectively  as  in 
their  judgment  the  best  interests  of  the  public  service  and 
the  needs  of  said  departments  respectively  may  require 
and  upon  filing  an  agreed  statement  of  such  partition  by 
said  joint  select  committee  in  triplicate  with  the  respec- 
tive Secretaries  of  such  departments  the  building  shall  be 
occupied  as  therein  provided  as  soon  thereafter  as  prac- 
ticable.1 Sec.  6,  act  of  August  5,  1882  (22  Stat.  L.,  256). 
Tlie  President  is  hereby  authorized  and  directed  to 
8^11^6  ^rom  ^ne  Engineer  Corps  of  the  Army  or  the 
^commission  to  -^avv?  aii  on^cer  well  qualified  for  the  purpose,  who  shall 
have  Bupervi-be  detailed  to  act  as  superintendent  of  the  completed  por- 
March  3, 1883,  tions  of  the  State,  War,  and  Navy  Department  building, 
under  direction  of  the  Secretaries  of  State,  War,  and 
Navy,  who  are  hereby  constituted  a  commission  for  the 
purposes  of  the  care  and  supervision  of  said  building,  as 
hereinafter  specified.  Said  officer  shall  have  charge  of 
said  building,  and  all  the  engines,  machinery,  steam  and 
water  supply,  heating,  lighting,  and  ventilating  apparatus, 
elevators,  and  all  other  fixtures  in  said  building,  and  all 
necessary  repairs  and  alterations  thereof,  as  well  as  the 
direction  and  control  of  such  force  of  engineers,  watchmen, 
laborers,  and  others  engaged  about  the  building  or  the 
apparatus  under  his  supervision;  of  the  cleaning  of  the 
corridors  and  water  closets ;  of  the  approaches,  side-walks, 
lawns,  court-yards,  and  areas  of  the  building,  and  of  all 
rooms  in  the  sub-basement  which  contain  the  boilers  and 
other  machinery,  or  so  much  of  said  rooms  as  may  be  indis- 
pensable to  the  proper  performance  of  his  duties  as  herein 
provided.  Act  of  March  5,  1883  (22  Stat.  L.,  553). 

DISPOSITION  OF  USELESS  PAPERS. 

For  statutes  regulating  the  disposition  of  useless  papers,  etc.,  in  the  several  Execu- 
tive Departments,  see  the  acts  of  February  16, 1889  (25  Stat.  L.,  672),  and  March  2, 1895 
(2?  Stat.  L.,  933). 


CHAPTER    IV. 


PROVISIONS  APPLICABLE  TO  SEVERAL  CLASSES 
OF  OFFICERS. 


Par. 

83. 

84. 
85. 

86. 
87. 


89. 
90. 

91. 
92. 

93. 


94, 


President  to  regulate  admis- 
sions to  the  civil  service. 

Preference  of  persons  disabled 
in  military  or  naval  service. 

Recommendation  for  employ- 
ment of  such  persons. 

Preference  iu  reductions. 

Appointment  of  Commission- 
ers, removals,  salaries,  and 
traveling  expenses. 

Duties  of  Commissioners : 
Competitive  examinations, 
vacancies,  how  filled,  appor- 
tionment, applications  for 
examination,  probation,  po- 
litical contributions,  coer- 
cion, noncompetitive  exami- 
nations, notice  of  changes, 
exceptions  to  rules,  regula- 
tions for  examinations,  in- 
vestigations, etc. 

Chief  examiner,  secretary, 
boards  of  examiners. 

Accommodations  for  Commis- 
sion. 

Frauds. 

Customs  classification;  post- 
office  classification. 

Examination  required  for  ap- 
pointment and  promotion ; 
preference  claimants;  exclu- 
sions. 

Persons  using  intoxicating 
beverages  ineligible  to  ap- 
pointment. 

Members  of  a  family. 

Recommendation  by  Mem- 
bers of  Congress. 

Political  assessments. 

1919 3 


Par. 

98.  Soliciting  contributions    for 

political    purposes    forbid- 
den. 

99.  Change  of  rank  or  compensa- 

tion. 

10).  Political    contributions    for- 
bidden. 

101.  Penalty  for  violation  of  pre- 

ceding sections. 

102.  Applications  for  examination 

to  be  accompanied  by  cer- 
tificate of  residence. 

103.  Preceding  section  not  to  ap- 

ply to   persons  already  in 
service. 

104.  Official  oaths. 

105.  Not  to  affect  existing  rights, 

etc. 

106.  Oath  for  certain  persons. 

107.  Who  to  administer  oath. 

108.  Custody  of  oath. 

109.  Unauthorized  office,  no  salary 

for. 

110.  No    salaries    to    certain  ap- 

pointees   to    fill    vacancies 
during  recess  of  the  Senate. 

111.  Salaries  to  officers  improperly 

holding  over. 

112.  Holding    offices    by   persons 

receiving  $2,500  forbidden; 
retired  officers  excepted. 

113.  Extra  services,  no  compensa- 

tion  for,   except    expressly 
authorized  by  law. 

114.  Extra  allowances. 

115.  Pay  of  officer  in  arrears  to  be 

withheld. 

116.  Commissions. 

117.  Notifications  of  appointments 

to  Secretary  of  Treasury. 


33 


34 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Par. 

118.  Notifications  of  nominations, 

rejections,  etc.,  to  Secretary 
of  Treasury. 

119.  Removal  of  office. 

120.  Preservation     of    copies     of 

Statutes  at  Large. 

121.  Taking    oaths,   acknowledg- 

ments, etc. 

122.  Restriction    upon    payments 

for  newspapers. 

123.  Failure  to  make  returns  or 

reports. 

124.  Prohibition  upon  taking  con- 

sideration    for     procuring 
contracts,  offices,  etc. 


Par. 

125.  Prohibition  upon  taking  com- 

pensation for  services  in 
matters  to  which  the  United 
States  is  a  party. 

126.  Persons  interested  not  to  act 

as  agents  for  the  Govern- 
ment. 

127.  Prohibition  of  contributions, 

presents,  etc.,  to  superiors. 

128.  Giving,  requesting,  etc.,  con- 

tributions by  officers  of  Gov- 
ernment for  political  pur- 
poses. 


THE   CIVIL   SERVICE. 


President    to     83.  The  President  is  authorized  to  prescribe  such  regu- 

sTonsto^ife  emulations  for  the  admission  of  persons  into  the  civil  service 

8eMar?3,  1871,  c.  of  the  United  States  as  may  best  promote  the  efficiency 

iu,  s.  9,  v.  is,  p.  -j-uereo^  an(j  ascertain  the  fitness  of  each  candidate  in 

Sec'1763)R*s*  respect  to  age,  health,  character,  knowledge,  and  ability 

for  the  branch  of  the  service  into  which  he  seeks  to  enter; 

and  for  this  purpose  he  may  employ  suitable  persons  to 

conduct  such  inquiries,  and  may  prescribe  their  duties, 

and  establish  regulations  for  the  conduct  of  persons  who 

may  receive  appointments  in  the  civil  service.1 

Preference  of     g4.  Persons  honorably  discharged  from  the  military  or 

persons  disabled 

in   military   or  naval  service  by  reason  of  disability  resulting  from  wounds 

naval  service.  ,-,11  /» 

Mar.  3,  1865,  or  sickness  incurred  in  the  line  of  duty,  shall  be  preferred 

Res.  No.  27,  s.  1,  .  fj  f 

v.  is,  p.  571.       for  appointments  to  civil  offices,  provided  they  are  found 

Sec.  1764,  R.  S.  ,  ,  ..  /.        ,, 

to  possess  the  business  capacity  necessary  for  the  proper 

discharge  of  the  duties  of  such  offices. 

tia?ft?emDto£      ^'  ^n  grateful  recognition  of  the  services,  sacrifices,  and 
men  t  of  such  per-  sufferingS  of  persons  honorably  discharged  from  the  mili- 
naval  seryice  °f  the  country,  by  reason  of  wounds, 


Mar'0327 

' 


v.  s,  P.  571.       disease,  or   the  expiration   of  terms  of  enlistment,  it     s 


respectfully  recommended  to  bankers,  merchants,  manu- 
facturers, mechanics,  farmers,  and  persons  engaged  in 
industrial  pursuits,  to  give  them  the  preference  for  appoint 
ments  to  remunerative  situations  and  employments. 

Preference   in     86.  In  making  any  reduction  of  force  iu  any  of  the  Exec- 
reductions.  J 

Aug.  15,  1876,  utive  Departments,  the  head  of  such  Department  shall 

v.  19,  p.  169.  .  . 

retain  those  persons  who  may  be  equally  qualified  who 
have  been  honorably  discharged  from  the  military  or  naval 


1  See  the  title  The  Civil  Service  Law,  post. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  35 

service  of  the  United  States,  and  the  widows  and  orphans 
of  deceased  soldiers  and  sailors.  Act  of  August  15, 1876 
(19  Stat.  L.,  169}. 

THE   CIVIL   SERVICE  LAW. 

87.  That  the  President  is  authorized  to  appoint,  by  and    Appointment 

J  of    Commission- 

with  the  advice  and  consent  of  the  Senate,  three  persons,  era. 
not  more  than  two  of  whom  shall  be  adherents  of  the  same  22,  p.  403'. 
party,  as  Civil  Service  Commissioners,  and  said  three  com- 
missioners shall  constitute  the  United  States  Civil  Service 
Commission.     Said   commissioners    shall  hold    no  other 
official  place  under  the  United  States. 
The  President  may  remove  any  commissioner;  and  any    Removal  of 

.,  ...  .,  .  .     «    i  />,,    %  Commissioners. 

vacancy  m  the  position  ot  commissioner  shall  be  so  filled 
by  the  President,  by  and  with  the  advice  and  consent  of 
the  Senate,  as  to  conform  to  said  conditions  for  the  first 
selection  of  commissioners. 

The  commissioners  shall  each  receive  a  salary  of  three    salaries    and 
thousand  five  hundred  dollars  a  year.     And  each  of  said  p^nsves.ling  ex" 
commissioners    shall    be    paid    his    necessary    traveling 
expenses  incurred  in  the  discharge  of  his  duty  as  a  com- 
missioner.   Act  of  January  16,  1883  (22  Stat.  L.,  403). 

88.  That  it  shall  be  the  duty  of  said  commissioners: 

First.  To  aid  the  President,  as  he  may  request,  in  pre-    Duties  of  com- 
paring suitable  rules  for  carrying  this  act  into  effect,  and    Rules. 
when  said  rules  shall  have  been  promulgated  it  shall  be    ' 
the  duty  of  all  officers  of  the  United  States  in  the  Depart- 
ments and  offices  to  which  any  such  rules  may  relate  to 
aid,  in  all  proper  ways,  in  carrying  said  rules,  and  any 
modifications  thereof,  into  effect.1 


'Under  the  authority  conferred  by  this  section  the  following  rules  have  been  pre- 
pared and  issued  by  the  President : 

CIVIL  SERVICE  RULES. 
(Revised  May  6, 1896.) 

SYNOPSIS  OF  RULES. 

RULE  I.  Regulations  to  be  prescribed;  definition  of  terms. 

RULE  II.  Penalties  and  prohibitions;  status  of  persons  after  their  positions  are 
classified. 

RULE  III.  Extent  of  each  of  the  five  branches  of  the  classified  service;  employees 
excluded  from  the  classified  service. 

RULE  IV.  Examinations  authorized ;  when  noncompetitive  examinations  may  be 
held;  appointment  and  duties  of  boards  of  examiners;  executive  officers  to  facilitate 
examinations. 

RULE  V.  Restrictions  governing  applicants  and  applications;  disqualifications  of 
applicants  and  eligibles ;  age  limitations  of  applicants. 

RULE  VI.  Exceptions  from  examination. 

RULE  VII.  Rating  of  examination  papers;  relative  standing  of  eligibles;  relative 
standing  of  preference  claimants;  registration  of  applicants;  term  of  eligibility. 

RULE  VIII.  Certifications  and  selections  for  filling  vacancies;  revocation  of  ap- 
pointments of  eligibles  not  entitled  to  certification ;  probationary  period  and  abso- 
lute appointment;  objection  by  appointing  officer  to  eligible;  apportionment  of 
appointments  in  Washington,  i).  C.;  to  what  clasa  appointment  must  be  made; 


36  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

Second.  And,  among  other  things,  said  rules  shall  provide 
and  declare,  as  nearly  as  the  conditions  of  good  adminis- 
tration will  warrant,  as  follows: 

competitive  First,  for  open,  competitive  examinations  for  testing  the 
fitness  of  applicants  for  the  public  service  now  classified 
or  to  be  classified  hereunder.  Such  examinations  shall  be 
practical  in  their  character,  and  so  far  as  may  be  shall 
relate  to  those  matfcers  which  will  fairly  test  the  relative 
capacity  and  fitness  of  the  persons  examined  to  discharge 
the  duties  of  the  service  into  which  they  seek  to  be 
appointed. 

fiTiedancie8'  h°w     Second,  that  all  the  offices,  places,  and  employments  so 
arranged  or  to  be  arranged  in  classes  shall  be  filled  by 


eligibles  with  same  average  percentage;  districts  to  be  formed  for  filling  vacancies 
in  certain  positions ;  appointment  and  promotion  of  substitutes;  temporary  or  emer- 
gency appointments. 

RULE  IX.  Reinstatements. 

RULE  X.  Transfers. 

RULE  XI.  Promotions. 

RULE  XII.  List  of  all  positions  and  employments  and  reports  of  changes  in  service 
to  be  furnished  to  Commission. 

Promulgating  ^u  theexercise  of  power  vested  in  him  by  the  Constitution,  and  of  authority  given 
order.  to  nim  °Y  *he  seventeen  hundred  and  fifty  third  section  or  the  Revised  Statutes, 

and  by  an  act  to  regulate  and  improve  the  civil  service  of  the  United  States, 
approved  January  16, 1883,  the  President  hereby  makes  and  promulgates  the  follow- 
ing rules,  and  revokes  all  others. 

RULE  I. 

Commission  1-  The  United  States  Civil  service  Commission  shall  have  authority  to  prescribe 
to  prescribe  reg-  regulations  in  pursuance  of,  and  for  the  execution  of,  the  provisions  of  these  rules 
illations.  and  of  the  civil-service  act. 

Definitions  of  2.  The  several  terms  hereinafter  mentioned,  wherever  used  in  these  rules  or  the 
terms.  regulations  of  the  Commission,  shall  be  construed  as  follows : 

(a)  The  term  "  Civil  Service  Act "  refers  to  "An  act  to  regulate  and  improve  the 
civil  service  of  the  United  States,"  approved  January  16,  1883. 

(b)  The  term  "  Classified  Service"  refers  to  all   that  part  of  the  executive  civil 
service  of  the  United  States  included  within  the  provisions  of  the  civil-service  act. 

(c)  The  term  "Grade,"  in  connection  with  employees  or  positions,  refers  to  a 
group  of  employees  or  positions  in  the  Classified  Service  arranged  upon  the  basis  of 
duties  performed  without  regard  to  salaries  received. 

(d)  The  term  "  Class,"  in  connection  with  employees  or  positions,  refers  to  a  group 
of  employees  or  positions  in  any  grade  arranged  upon  the  basis  of  salaries  received, 
in  pursuance  of  the  provisions 'of  section  163  of  the  Revised  Statutes  and  of  section 
6  of  the  civil-service  act. 

(e)  The  term  "  Excepted  position  "  refers  to  any  position  within  the  provisions  of 
the  civil-service  act,  but  excepted  from  the  requirement  of  competitive  examination 
or  registration  for  appointment  thereto. 

RULE  II. 

Dismissal  for  1.  Any  person  in  the  executive  civil  service  of  the  United  States  who  shall  will- 
violation  of  act  fully  violate  any  of  the  provisions  of  the  civil-service  act  or  of  these  rules  shall  be 
or  rules.  dismissed  from  office. 

No  interfer-  2.  No  person  in  the  executive  civil  service  shall  use  his  official  authority  or 
ence  with  elec-  official  influence  for  the  purpose  of  interfering  with  an  election  or  controlling  the 
tions.  result  thereof. 

No  dismissal  or  3.  No  person  in  the  executive  civil  service  shall  dismiss,  or  cause  to  be  dismissed, 
change  of  rank  or  make  any  attempt  to  procure  the  dismissal  of,  or  in  any  manner  change  the 
for  political  or  re-  official  rank  or  compensation  of  any  other  person  therein  because  of  his  political  or 
ligious  opinions,  religious  opinions  or  affiliations. 

No  disclosures     4.  No  question  in  any  examination,  or  form  of  application,  shall  be  so  framed  as 

of  political  or  re-  to  elicit  information  concerning,  nor  shall  any  inquiry  be  made  concerning,  nor  any 

ligious    opinions  other  attempt  be  made  to  ascertain,  the  political  or  religious  opinions  or  affiliations 

of  applicants,  of  any  applicant,  competitor,  or  eligible;   and  all  disclosures  thereof  shall  be  dis- 

etc.  countenanced.     And  no  discrimination  shall  be  exercised,  threatened,  or  promised, 

against  or  in  favor  of,  any  applicant,  competitor,  or  eligible  because  of  his  political 

or  religious  opinions  or  affiliations. 

Recommenda-  5.  No  recommendation  of  an  applicant,  competitor,  or  eligible,  involving  any  dis- 
tions  that  can  not  closure  of  his  political  or  religious  opinions  or  affiliations,  shall  be  received,  filed, 
be  received,  filed,  or  considered  by  the  Commission,  by  any  board  of  examiners,  or  by  any  nominating 
or  considered.  or  appointing  officer. 

Penalties  like  6.  In  making  removals  or  reductions,  or  in  imposing  punishment,  for  delinquency 
in  character.  or  misconduct,  penalties  like  in  character  shall  be  imposed  for  like  offenses,  and 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.       37 

selections  according  to  grade  froiri  among  those  graded 
highest  as  the  results  of  such  competitive  examinations. 

Third,  appointments  to  the  public  service  aforesaid  in  the    Apportion- 
departments  at  Washington  shall  be  apportioned  among  the 
several  States  and  Territories  and  the  District  of  Columbia 
upon  the  basis  of  population  as  ascertained  at  the  last  pre- 
ceding' census.    Everv  application  for  an  examination  shall ,  Applications 

lor  examination. 

contain,  among  other  things,  a  statement,  under  oath,  set- 
ting forth  his  or  her  actual  boua  fide  residence  at  the  time 
of  making  the  application,  as  well  as  how  long  he  or  she 
has  been  a  resident  of  such  place. 

Fourth,  that  there  shall  be  a  period  of  probation  before    Probation, 
any  absolute  appointment  or  employment  aforesaid. 

action  thereupon  shall  be  taken  irrespective  of  the  political  or  religious  opinions  or 
affiliations  of  the  offenders. 

7.  A  person  holding  a  position  on  the  date  said  position  is  classified  under  the      Status  of  em- 
civil-service  act  shall  be  entitled  to  all  the  rights  and  benefits  possessed  by  persons  plovees    after 
of  the  same  class  or  grade  appointed  upon  examination  under  the  provisions  of  said  classification 
act. 

RULE  III. 

1.  All  that  part  of  the  executive  civil  service  of  the  United  States  which  has     D  iff  e  r  o  n  t 
been,  or  may  hereafter  be,  classified  under  the  civil-service  act  shall  be  arranged  in  branches  of  das- 
brunches    as   follows:    The  departmental   service,  the  customhouse   service,  the  sified  service. 
Post-Office  service,   the  Government  Printing  service,  and  the  Internal  Revenue 

Service. 

2.  The  departmental  service  shall  include  officers  and  employees  as  follows,  ex-     Extent  of   de- 
cept  those  in  the  service  of  the  Government  Printing  Office  and  in  the  service  of  the  partmental  serv- 
several  custom-houses,  post-offices,  and  internal-revenue  districts.  ice. 

(a)  All  officers  and  employees  of  whatever  designation,  except  persons  merely 
employed  as  laborers  or  workmen  and  persons  who  have  been  nominated  for  con- 
firmation by  the  Senate,  however  or  for  whatever  purpose  employed,  whether  com- 
pensated by  a  fixed  salary,  or  otherwise,  who  are  serving  in,  or  on  detail  from — 

The  several  Executive  Departments,  the  commissions,  and  offices,  in  the  District 
of  Columbia. 

The  Railway  Mail  Service. 
The  Indian  Service. 
The  several  pension  agencies. 
The  Steamboat- Inspection  Service. 
The  Marine-Hospital  Service. 
The  Light- House  Service. 
The  Life-Saving  Service. 
The  several  mints  and  assay  offices. 
The  Revenue-Cutter  Service. 

The  force  employed  under  custodians  of  public  buildings. 
The  several  subtreasuries. 
The  Engineer  Department  at  large. 

(b)  All  executive  officers  and  employees  outside  of  the  District  of  Columbia  not 
covered  in  (a),  of  whatever  designation,  whether  compensated  by  a  fixed  salary,  or 
otherwise— 

Who  are  serving  in  a  clerical  capacity,  or  whose  duties  are  in  whole  or  in  part  of 
a  clerical  nature. 

Who  are  serving  in  the  capacity  of  watchman  or  messenger. 

Who  are  serving  in  the  capacity  of  physician,  hospital  steward,  nurse,  or  whose 
duties  are  of  a  medical  nature. 

Who  are  serving  in  the  capacity  of  draftsman,  civil  engineer,  steam  engineer, 
electrical  engineer,  computer,  or  fireman. 

Who  are  in  the  service  of  the  Supervising  Architect's  Office  in  the  capacity  of 
superintendent  of  construction,  superintendent  of  repair,  or  foreman. 

Who  are  in  the  service  of  the  Treasury  Department  in  any  capacity. 

3.  The  custom-house  service  shall  include  the  officers  and  employees  serving  in      Extent  of  cus- 
any  customs  district,  whose  employees  number  as  many  as  five,  who  have  been,  or  torn-house    serv- 
may  hereafter  be,  classified  under  the   civil-service  act.    And  whenever  in  any  ice. 

customs  district  whose  officers  and  employees  number  less  than  five  the  number  of 
officers  and  employees  shall  be  increased  to  as  many  as  five,  the  Secretary  of  the 
Treasury  shall  at  once  notify  the  Commission  of  such  increase,  and  the  officers  and 
employees  in  said  district  shall  be  included  within  the  classified  service  from  the 
date  of  said  increase. 

4.  The  Post  Office  service  shall  include  the  officers  and  employees  in  any  free-      Extent  of  Post- 
delivery  post-office  who  have  been,  or  may  hereafter  be,  classified  under  the  civil-  Office  service, 
service  act.    And  whenever  the  free-delivery  system  shall  be  established  in  any 

post-office  the  Postmaster-General  shall  at  once  notify  the  Commission  of  such 
establishment  and  the  officers  or  employees  of  said  office  shall  be  included  within 


38  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Political   con-     Fifth,  that  no  person  in  the  public  service  is  for  that 

tributions  and 

service.  reason  under  any  obligations  to  contribute  to  any  political 

fund,  or  to  render  any  political  service,  and  that  he  will  not 
be  removed  or  otherwise  prejudiced  for  refusing  to  do  so. 

coercion.  Sixth,  that  no  person  in  said  service  has  any  right  to  use 

his  official  authority  or  influence  to  coerce  the  political 
action  of  any  person  or  body. 

Noncompeti-     Seventh,  there  shall  be  non-competitive  examinations  in 

tive   examina- 
tions, all  proper  cases  before  the  Commission,  when  competent 

persons  do  not  compete,  after  notice  has  been  given  of  the 
existence  of  the  vacancy,  under  such  rules  as  may  be  pre- 
scribed by  the  commissioners  as  to  the  manner  of  giving 
notice. 

changes1 ineser°vf     Eighth,  that  notice  shall  be  given  in  writing  by  the  ap- 
ice-  pointing  power  to  said  Commission  of  the  persons  selected 

for  appointment  or  employment  from  among  those  who 
have  been  examined,  of  the  place  of  residence  of  such  per- 
sons, of  the  rejection  of  any  such  persons  after  probation, 
of  transfers,  resignations,  and  removals,  and  of  the  date 
thereof,  and  a  record  of  the  same  shall  be  kept  by  said 
Commission. 

to  And  any  necessary  exceptions  from  said  eight  fundamen- 
tal provisions  of  the  rules  shall  be  set  forth  in  connection 
with  such  rules,  and  the  reasons  therefor  shall  be  stated  in 
the  annual  reports  of  the  Commission. 

the  classified  service  from  the  date  of  such  establishment;  and  whenever,  by  order 
Consolidation  of  the  Postmaster-General,  any  post-office  shall  be  consolidated  with,  and  made  a 

of  post-offices.  part  of,  a  free-delivery  post-office,  the  Postmaster-General  shall  at  once  notify  tho 
Commission  of  such  consolidation,  and  from  tho  date  of  said  order  the  employees  of 
the  office  thus  made  a  part  of  the  free  delivery  office  whose  names  appear  on  the 
roster  of  the  Post-Office  Department  shall  be  employees  of  said  free-delivery  office, 
and  the  person  holding,  on  the  date  of  said  order,  the  position  of  postmaster  at  the 
office  thus  made  a  part  of  said  free-delivery  office  may  be  made  an  employee  in  said 
free  delivery  office  and  may  at  the  time  of  classification  be  assigned  to  any  position 
therein  and  given  any  appropriate  designation  which  the  Postmaster  General  may 
direct. 
Extent  of  Gov-  5.  The  Government  Printing  Service  shall  include  the  officers  and  employees  in 

ernmentPrinting  tne  Government  Printing  Office,  who  have  been,  or  may  hereafter  be,  classified 

service.  under  the  civil-service  act. 

Extent  of   In-     6.  The  Internal  Revenue  Service  shalLinclude  the  officers  and  employees  who  have 

ternal     Revenue  been,  or  may  hereafter  be,  classified  under  the  civil-service  act  in  any  intemal-reve- 

Service.  nue  district. 

Employees    al-      ?•  All  officers  and  employees  who  have  heretofore  been  classified  under  the  civil- 
ready     classified  service  act  shall  be  considered  as  still  classified  and  subject  to  the  provisions  of 

covered  by  rules,  these  rules. 
Employees  and     8.  The  following-mentioned  positions  or  employees  shall  not  be  subject  to  the  pro- 

positions    not  vision  of  these  rules: 

covered  by  rules,  (a>  -^UJ  position  tilled  by  a  person  whose  place  ot  private  business  is  conveniently 
located  for  his  performance  of  the  duties  of  said  position,  or  any  position  filled  by  a 
person  remunerated  in  one  sum  both  for  services  rendered  therein,  and  for  necessary 
rent,  fuel,  and  lights  furnished  for  the  performance  of  the  duties  thereof:  Provided, 
That  in  either  case  the  performance  of  the  duties  of  said  position  requires  only  a 
portion  of  the  time  and  attention  of  the  occupant,  paying  him  a  compensation  not 
exceeding,  lor  his  personal  salary  only,  three  hundred  dollars  per  annum,  and  per- 
mitting of  his  pursuing  other  regular  business  or  occupation. 

(ft)  Any  person  in  the  military  or  naval  service  of  the  United  States  who  is  detailed 
for  the  performance  of  civil  duties. 

(c)  Any  person  employed  in  a  foreign  country,  under  the  State  Department,  or 
temporarily  employed  in  confidential  capacity  in  a  foreign  country. 

(d)  Any  position  whose  duties  are  of  a  quasi-military  or  quasi-naval  character  and 
for  the  performance  of  whose  duties  a  person  is  enlisted  for  a  term  of  years. 

RULE  IV. 

Examinations     1.  In  pursuance  of  the  provisions  of  section  2  of  the  civil-service  pet,  there  shall 
authorized.  be  provided,  to  test  fitness  for  admission  to  positions  which  have  been,  or  may  here- 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  39 

Third.  Said  Commission  shall,  subject  to  the  rules  that  ,  Regulations 

for    e  x  a  m  i  n  a  - 

may  be  made  by  the  President,  make  regulations  for,  and  tions. 
have  control  of,  such  examinations,  and,  through  its  mem- 
bers or  the  examiners,  it  shall  supervise  and  preserve  the 


records  of  the  same;  and  said  Commission  shall  keep  min- 
utes of  its  own  proceedings. 

Fourth.  Said  Commission  may  make  investigations  con-  investigations 
cerning  the  facts,  and  may  report  upon  all  matters  touching 
the  enforcement  and  effects  of  said  rules  and  regulations, 
and  concerning  the  action  of  any  examiner  or  board  of 
examiners  hereinafter  provided  for,  and  its  own  subordi- 
nates, and  those  in  the  public  service,  in  respect  to  the 
execution  of  this  act. 

Fifth.  Said  Commission  shall  make  an  annual  report  to  Annuaireport. 
the  President  for  transmission  to  Congress,  showing  its  own 
action,  the  rules  and  regulations  and  the  exceptions  thereto 
in  force,  the  practical  effects  thereof,  and  any  suggestions 
it  may  approve  for  the  more  effectual  accomplishment  of 
the  purposes  of  this  act.  Sec.  2,  act  of  January  16.  1883 
(22  Stat.  L.,  403). 

89.  That  said  Commission  is  authorized  to  employ  a  chief.  Chief     exam- 

J  iner. 

examiner,  a  part  of  whose  duty  it  shall  be,  under  its  direc-    sec.s,  ibid. 
tion,  to  act  with  the  examining  boards,  so  far  as  practi- 
cable, whether  at  Washington  or  elsewhere,  and  to  secure 
accuracy,  uniformity,  and  justice  in  all  their  proceedings, 


after  be,  classified  under  the  civil-service  act,  examinations  of  a  practical  and  suitable 
character  involving  such  subjects  and  tests  as  the  Commission  may  direct. 

2.  No  person  shall  be  appointed  to,  or  be  employed  in.  any  position  which  has  been,      Examinations 
or  may  hereafter  be,  classified  under  the  civil-service  act,  until  he  shall  have  passed  required. 

the  examination  provided  therefor,  or  unless  he  is  especially  exempt  from  examina- 
tion by  the  provisions  of  said  act  or  the  rules  made  in  pursuance  thereof. 

3.  In  pursuance  of  the  provisions  of  section  2  of  the  civil-service  act,  wherever  com       When  noncom- 
petent  persons  can  be  found  who  are  willing  to  compete,  no  noncompetitive  exami-  petitive     exami- 
nation shall  be  given  except  as  follows:  nations    may  be 

(a)  To  test  fitness  for  transfer  or  for  promotion  in  a  part  of  the  service  to  which  held, 
promotion  regulations  have  not  been  applied. 

(b)  To  test  fitness  for  appointment  of  Indians  as  superintendents,  teachers,  teachers 
of  industries.  lundergartnera,  and  physicians  in  the  Indian  Service  at  large. 

The  noncompetitive  examinations  of  Indians  for  the  positions  mentioned  shall  con- 
sist of  such  tests  of  fitness,  not  disapproved  by  the  Commission,  as  may  be  determined 
upon  by  the  Secretary  of  the  Interior.  A  statement  of  the  result  of  every  noncom- 
petitive test,  and  all  appointments,  transfers,  or  promotions  based  thereon  shall  be 
immediately  forwarded  to  the  Commission. 

4.  In  pursuance  of  the  provisions  of  section  3  of  the  civil-service  act,  examinations     Dates     and 
shall  be  provided  at  such  places  and  upon  such  dates  as  the  Commission  shall  deem  places  of   exam- 
most  practicable  to  subserve  the  convenience  of  applicants  and  the  needs  of  the  inations. 
service. 

5.  In  pursuance  of  the  provisions  of  section  3  of  the  civil-service  act,  the  Cpmmis-      Appointment 
sion  shall  appoint,  from  persons  in  the  Government  service,  such  boards  of  exam-  and    duties    of 
iners  as  it  may  deem  necessary.    The  members  of  said  boards  shall  perform  such  boards  of  exam- 
duliesas  the  Commission  may  direct  in  connection  with  examinations,  appointments,  iners. 

and  promotions,  in  any  part  of  the  service  which  has  been,  or  may  hereafter  be, 
classified.  The  members  of  any  board  of  examiners  in  the  performance  of  their 
duties  as  such  shall  be  under  the  direct  and  sole  control  and  authority  of  the  Com- 
mission. The  duties  performed  by  the  members  of  any  board  of  examiners  in  their 
capacity  as  such  shall  be  considered  part  of  the  duties  of  the  office  in  which  they  are 
serving,  and  time  shall  be  allowed  for  the  performance  of  said  duties  during  the 
office  hours  of  said  office.  The  members  of  any  board  of  examiners  shall  not  all  be 
adherents  of  one  political  party,  when  persons  of  other  political  parties  are  available 
and  competent  to  serve  upon  said  board. 

6.  In  pursuance  of  the  provisions  of  section  3  of  the  civil-service  act,  all  executive     Executive  offi- 
officers  of  the  United  States  shall  facilitate  civil-service  examinations;  and  post- cers  to  facilitate 
masters,  customs  officers,  internal-revenue  officers,  and  custodians  of  public  build-  examinations, 
ings  at  places  where  such  examinations  are  to  be  held,  shall,  for  the  purpose  of  such 


40 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Secretary. 


which  shall  be  at  all  times  open  to  him.  The  chief  exam: 
iner  shall  be  entitled  to  receive  a  salary  at  the  rate  of  three 
thousand  dollars  a  year,  and  he  shall  be  paid  his  necessary 
traveling  expenses  incurred  in  the  discharge  of  his  duty. 
The  Commission  shall  have  a  secretary,  to  be  appointed  by 
the  President,  who  shall  receive  a  salary  of  one  thousand 


Qualifications 
of  applicants. 

Applications 
from  enlisted 
men. 


Disqualifica 
-        jli 
gi 


tions    of   appli- 
eliei- 


cauts  and 
bles. 


Agelimitations 
for  applicants. 

No  age  limita- 
tions for  prefer- 
ence claimants. 


examinations,  permit  and  arrange  for  the  use  of  suitable  rooms  under  their  charge 
and  for  heating,  lighting,  and  furnishing  the  same. 

RULE  V. 

1.  Every  applicant  for  examination  must  be  a  citizen  of  the  Ignited  States,  must 
be  of  proper  age,  and  must  make  an  application  under  oath,  upon  a  form  prescribed 
by  the  Commission,  and  accompanied  by  such  certificates  as  may  bo  prescribed. 

2.  No  application  for  examination  shall  be  accepted  from  any  person  serving  in  the 
Army,  the  Navy,  or  Marine  Corps  of  the  United  States,  unless  the  written  consent  of 
the  liead  of  the  Department  under  which  said  person  is  enlisted  is  tiled  with  his 
application. 

3.  The  Commission  may,  in  its  discretion,  refuse  to  examine  an  applicant,  or  to 
certify  an  eligible,  who  is  physically  so  disabled  as  to  be  rendered  unfit  for  his  per- 
formance of  the  duties  of  the  position  to  which  lie  seeks  appointment;  or  who  has 
been  guilty  of  a  crime  or  of  infamous  or  notoriously  disgraceful  conduct;  or  who 
has  been  dismissed  from  the  service  for  delinquency  or  misconduct  within  one  year 
next  preceding  the  date  of  his  application;  or  who  has  intentionally  made  a  false 
statement  in  any  material  fact,  or  practiced  or  attempted  to  practice  any  deception 
or  fraud  in  securing  his  registration  or  appointment.    Any  of  the  foregoing  disquali- 
fications shall  be  good  cause  for  the  removal  of  an  eligible  from  the  service  after  his 
appointment. 

4.  No  application  for  examination  shall  be  accepted  unless  the  applicant  is  within 
the  age  limitations  fixed  herein  for  entrance  to  the  position  to  which  he  seeks  to  be 
appointed:  Provided,  That  subject  to  the  other  conditions  of  these  rules  the  appli- 
cation of  any  person  whose  claim  of  preference  under  the  provisions  of  section  1754 
of  the  .Revised  Statutes  has  been  allowed  by  the  Commission  may  be  accepted  with- 
out regard  to  his  age.    The  age  limitations' for  entrance  to  positions  in  the  different 
branches  of  the  service  shall  be  as  follows : 


Minimum. 

Maximum. 

DEPARTMENTAL  SERVICE: 

14 
16 

18 
18 

25 
21 
20 

20 
21 

21 

18 

21 

18 

18 
21 

18 
20 
No  limit. 
35 

55 
45 
No  limit. 

Do. 
Do. 

40 
No  limit. 

Do. 
Do. 

Do. 
Do. 

Superintendent,  physician,  supervisor,  day  school  in- 
spector and  matron  Indian  Service                   

All  other  positions  in  the,  Indian  Service       

All  other  positions 

(These  limitations  shall  not  apply  in  the  case  of  wives 
of  superintendents  of  Indian  schools  who  apply  for  exam- 
ination 1'or  the  position  of  teacher  or  matron.) 
CUSTOM-HOUSE  SERVICE: 
Clerk  and  messenger 

Other  positions  .  . 

POST-OFFICE  SERVICE: 
Letter  carrier                                                                      

Other  positions  

GOVERNMENT  PRINTING  SERVICE: 

All  positions  (female)                                             

INTERNAL  REVENUE  SERVICE: 
Clerk  .                                                                     

Applications  5.  No  application  shall  be  accepted  for  examination  for  a  position  which  belongs 
for  trade  posi-  to  one  of  the  recognized  mechanical  trades  unless  it  shall  be  shown  that  the  apph- 
tions.  cant  has  served  as  apprentice  or  as  journeyman  or  as  apprentice  and  journeyman  at 

said  trade  for  such  periods  as  the  Commission  may  prescribe. 

RULE  YI. 

Excentions      '^ne  fbH°'Wvn&*n''ttned  employees  or  positions  which  have  been,  or  may  hereafter 
from  exairina  be'  classified  under  the  civil-service  act  shall  be  excepted  from  the  requirement  of 
tion  or  registry  examination  or  registration: 
DEPARTMENTAL  SERVICE.- 

(a)  Private  secretaries  or  confidential  clerks  (not  exceeding  two)  to  the  President 
or  to  the  head  of  each  of  the  eight  Executive  Departments. 

(b)  Indians  employed  in  the  Indian  Service  at  large,  except  those  employed  as 
superintendents,  teachers,  teachers  of  industries,  kindergai'tners,  and  physicians. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES  41 

six  hundred  dollars  per  annum.  It  may,  when  necessary, 
employ  a  stenographer,  and  a  messenger,  who  shall  be 
paid,  when  employed,  the  former  at  the  rate  of  one  thou- 
sand six  hundred  dollars  a  year,  and  the  latter  at  the  rate 
of  six  hundred  dollars  a  year.  The  Commission  shall,  at 
Washington,  and  in  one  or  more  places  in  each  State  and 

CUSTOM-HOUSE  SERVICE: 

(a)  One  cashier  in  each  customs  district. 

(b)  One  chief  or  principal  deputy  or  assistant  collector  in  each  customs  district 
whose  employees  number  as  many  as  150. 

3'OST-()FFICE  SERVICE : 

(a)  One  assistant  postmaster,  or  chief  assistant  to  the  postmaster,  of  whatever 
designation,  at  each  post-office. 

(b)  One  cashier  of  each  first-class  post-office  when  employed  under  the  roster  title 
of  cashier  only. 

INTERNAL  REVENUE  SERVICE  : 
One  cashier  in  each  internal-revenue  district. 

RULE  VII. 

1.  Examination  papers  shall  be  rated  on  a  scale  of  100,  and  the  subjects  therein     Rating  exam- 
shall  be  given   such  relative  weights  as  the  Commission  may  prescribe.    After  a  ination  papers, 
competitor's  papers  have  been  rated,  he  shall  be  duly  notified  of  the  result  thereof. 

2.  Every  competitor  who  attains  an  average  percentage  of  70  or  over  shall  be     Eligible    aver- 
eligible  for  appointment  to  the  position  for  which  he  was  examined ;  and  the  names  of  age. 

eligibles  shall  be,  entered,  in  the  order  of  their  average  percentages,  on  the  proper 

register  of  eligibles:  Provided,  That  the  names  of  all  competitors  whose  claims  to     Eligible    aver- 

preference  under  the  provisions  of  section  1754  of  the  Revised  Statutes  have  been  age  of  preference 

allowed   by  the  Commission,  and  who  attain  an  average  of  65  or  over,  shall  be  claimants. 

placed,  in  the  order  of  their  average  percentages,  at  the  head  of  the  proper  register 

of  eligibles. 

3.  For  filling  vacancies  in  positions  for  which  competitive  tests  are  not  practi      Registration  of 
cable,  the  registration  of  applicants  shall  be  in  the  order  in  which  they  fulfill  the  applicants, 
requirements  prescribed  therefor  by  regulation  of  the  Commission:  Provided,  That     Registration 
persons  who  served  in  the  military  or  naval  service  of  the  United  States  in  the  late  °f  pref  ere  n  ce 
war  of  the  rebellion  and  were  honorably  discharged  therefrom,  and  persons  who  claimants, 
have  been  separated  from  such  positions  above  mentioned  through  no  delinquency 

or  misconduct,  shall  be  placed  at  the  head  of  the  proper  register  in  the  order  of  their 
fulfillment  of  said  requirements. 

4.  The  term  of  eligibility  shall  be  one  year  from  the  date  on  which  the  name  of     Term  of  eligi- 
the  eligible  is  entered  upon  the  register.  bility. 

RULE  VIII. 

In  pursuance  of  the  provisions  of  section  2  of  the  civil-service  act,  whenever  a     Method  of  fill- 
vacancy  occurs  in  any  position  which  has  been,  or  may  hereafter  be.  classified  under  ing  vacancies, 
the  civil-service  act,  and  which  is   not  an  excepted  position,  the  filling  of  said 
vacancy,  unless  filled  through  noncompetitive  examination  or  by  reinstatement, 
transfer,  promotion,  or  reduction,  shall  be  governed  as  follows: 

1.  The  appointing  or  nominating  officer  shall  request  certification  to  him  of  the      Three  names  to 
names  of  eligibles  for  the  position  vacant,  and  the  Commission  shall  certify  to  said  be  certified. 
officer  from  the  proper  register  the  three  names  at  the  head  thereof  which  have  not 

Certification 
smporary 

_„ ,  appointment. 

rule,  or  regulation,  or  is  specified  in  the  request  for  certification,  the  names  of  those     Certifi  cation 
of  the  sex  so  fixed  or  specified  shall  be  certified,  but  in  other  cases  certification  shall  by  sexes, 
be  made  without  regard  to  sex. 

2.  Of  the  three  names  certified  the  nominating  or  appointing  officer  shall  select     Selections  from 
one,  and  if  at  the  time  of  selection  there  are  more  vacancies  than  one,  he  may  select  certifications, 
more  than  one  name,  unless  otherwise  directed  by  the  Commission. 

3.  If  an  eligible  who  is  not  entitled  to  certification  is  certified  and  appointed,  his      Eligible  not 
appointment  shall  be  immediately  revoked  by  the  appointing  officer  upon  notification  entitled  to  certi- 
from  the  Commission.  n'cation. 

4.  A  person  selected  for  appointment  shall  bo  notified  of  his  selection  by  the     Probationary 
appointing  or  nominating  officer,  and  upon  his  acceptance  shall  receive  from  the  period    author- 
appointing  officer  a  certificate  of  appointment  for  a  probationary  period  of  six  months,  ized. 

at  the  end  of  which  period,  if  the  conduct  and  capacity  of  the  probationer  are  satis- 
factory to  the  appointing  officer,  his  retention  in  the  service  shall  be  equivalent  to  his      What  is  equiv- 
absolute  appointment;  but  if  his  conduct  or  capacity  be  not  satisfactory,  ho  shall  be  alent  to  absolute 
notified  by  the  appointing  officer  that  he  will  not  receive  absolute  'appointment  appointment, 
because  of  such  unsatisfactory  conduct  or  want  of  capacity ;  and  such  notification 
shall  discharge  him  from  the  service :  Provided,  That  the  probation  of  an  emplovee     Di  s  charge    of 
in  the  Indian  school  service  shall  terminate  at  the  end  of  the  school  year  in  which  probationer, 
he  is  appointed  -.And  provided  further,  Thatthe  time  which  an  employee  has  actually     Termination  of 
served  as  substitute  in  parts  of  the  service  where  substitutes  are  authorized  shall  probation  in  In- 
be  counted  as  part  of  the  probationary  period  of  his  regular  appointment;  but  that  diau  school  serv- 
time  served  under  a  temporary  appointment  shall  not  be  so  counted.  ice.      Service    of 

substitute  part 
of  probationary 
period.  Tempo- 
rary service  not 
to  be  so  counted. 


42       THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

Territory  where  examinations  are  to  take  place,  designate 
and  select  a  suitable  number  of  persons,  not  less  than  three, 
in  the  official  service  of  the  United  States,  residing  in  said 
State  or  Territory,  after  consulting  the  head  of  the  depart- 
ment or  office  in  which  such  persons  serve,  to  be  members 
Boards  of  ex-  of  boards  of  examiners,  and  may  at  any  time  substitute 

amiaers.  ,       .  .  ^ 

any  other  person  in  said  service  living  in  such  State  or 
Territory  in  the  place  of  any  one  so  selected.  Such  boards 
of  examiners  shall  be  so  located  as  to  make  it  reasonably 
convenient  and  inexpensive  for  applicants  to  attend  before 
them;  and  where  there  are  persons  to  be  examined  in  any 
State  or  Territory,  examinations  shall  be  held  therein  at 


Objection  of     5.  If  the  appointing  or  nominating  office^  shall  object  to  an  eligible  named  in  the 

appointing     offi-  certificate,  stating  that,  because  oi  some  physical  defect,  mental  unsoundness,  or 

cer  to  eligible,       moral  disqnalitication,  particularly  specified,  said  eligible  would  be  incompetent  or 

unfit  for  the  performance  of  the  duties  of  the  vacant  position,  and  if  said  officer  shall 

sustain  such  objection  with  evidence  satisfactory  to  the  Commission,  the  Commission 

may  certify  the  eligible  on  the  register  who  is  in  average  percentage  next  below  those 

already  certified,  in  place  of  the  one  to  whom  objection  is  made  and  sustained. 

Apportionment     C.  Certifications  for  appointment  of  persons  for  service  in,  or  on  direct  detail  from, 

law  to  be  ob-  any  Department  or  office  in  Washington,  I).  C.,  shall  be  so  made  as  to  maintain,  as 

served.  nearly  as  possible,  the  apportionment  of  such  appointments  among  the  several 

Exceptions    to  States  and  Territories  and  District  of  Columbia  upon  the  basis  of  population,  except 

apportionment,     to  appointments  in  the  Government  Printing  Office,  to  the  position  of  printer's 

assistant,  skilled  helper  and  operative,  in  the  Bureau  of  Engraving  and  Printing,  to 

positions  in  the  post  quartermaster's  office,  in  the  pension  agency,  and  other  local 

offices,  in  the  District  of  Columbia;  and  to  the  positions  of  page  and  messenger  boy, 

and  apprentice  or  student. 

Appointment  ?•  Within  any  part  of  the  service  to  which  promotion  regulations  have  been,  or 
to  lowest  class  may  hereafter  be,  applied,  certification  of  those  eligible  to  original  appointment  shall 
and  exception  not  be  made  for  filling  a  vacancy  in  a  position  above  the  lowest  class  in  any  grade, 
thereto.  whenever  there  is  any  person  eligible  and  willing  to  be  promoted  to  said  vacancy: 

Provided,  That  a  vacancy  in  any  position  requiring  the  exercise  of  technical  or  pro- 
fessional knowledge  may  be  filled  by  original  appointment. 

Eligibles  with  8.  When  two  or  more  eligibles  on  a  register  have  the  same  average  percentage, 
same  average  preference  in  certification  shall  be  determined  by  t-ho  order  in  which  their  applica- 
percentage.  '  tions  were  filed. 

Vacancies  to  be  9.  For  filling  vacancies  in  positions  outside  of  the  District  of  Columbia  and  in  posi- 
filled  by  districts,  tions  in  the  pension  agency,  the  depot  quartermaster's  office,  and  other  local  offices, 
in  the  District  of  Columbia,  the  territory  of  the  United  States  shall  be  arranged  in 
such  sections  or  districts  as  the  Commission  may  determine:  and  an  eligible  shall  be 
certified,  in  his  order,  to  vacancies  in  the  section  or  district  in  which  he  resides,  and 
upon  his  written  request  to  vacancies  in  any  one  or  more  of  the  other  sections  or 
districts :  Provided,  That  in  the  custom-house'service,  Post-Office  service,  or  Internal 
Revenue  Service,  an  eligible  shall  be  certified  only  to  vacancies  in  the  customs  dis- 
trict, post-office,  or  internal-revenue  district  where  he  was  examined. 

Employment     10.  In  any  part  of  the  service  in  which  the  employment  of  substitutes  is  not,  pro- 
of substitutes,     hibited  by  law,  there  may  be  certified  and  appointed  in  the  manner  provided  for  in 
this  rule,  only  such  number  of  substitutes  as  are  actually  needed  for  the  perform- 
ance of  substitute  duty. 

Appointment     11.  In  any  part  of  the  service  in  which  substitutes  are  employed,  certifications  of 
and  promotion  of  those  eligible  to  original  appointment  shall  be  made  for  filling  vacancies  in  substi- 
substitutes.          tute  positions  only,  and  vacancies  in  regular  positions  shall  be  filled  by  the  appoint- 
ment or  promotion  thereto  of  substitutes  in  the  order  of  their  original  appointment 
as  substitutes,  whenever  there  are  substitutes  of  the  required  sex  who  are  eligible 
and  willing  to  be  so  appointed  or  promoted.     Substitutes  so  appointed  or  promoted 
shall,  however,  be  subject  to  the  provisions  of  these  rules  relating  to  probation  and 
permanent  appointment. 

Preference  to  12.  Upon  request  of  the  appointing  or  nominating  officer,  preference  in  certifica- 
wife  of  superin-  tion  may  be  given  to  the  wife  of  the  superintendent  of  an  Indian  school  for  filling  a 
tendent  of  In-  vacancy  in  the  position  of  teacher  or  matron  in  said  school. 

dian  school.  13.  Whenever  there  shall  occur  a  vacancy  which  the  public  interest  requires  shall 

Temporary  ap-  be  immediately  filled  and  which  can  not  be  so  filled  in  time  to  meet  the  emergency  by 
pointment  for  certification  from  the  eligible  registers,  such  vacancy  may,  subject  to  the  approval 
emergency.  of  the  Commission,  be  filled  by  temporary  appointment  without  examination  until  a 

regular  appointment  can  be  made      Such  temporary  appointment  shall  in  no  case 
continue  longer  than  ninety  days,  and  shall  expire  by  limitation  at  the  end  of  that 
Restrictions  time.    No  person  shall  serve  longer  than  ninety  days  in  anyone  year  under  such 
upon  temporary  temporary  appointment  or  appointments,  and  in  any  event  only  until  a  regular 
appointments,      appointment  can  be  made  through  examination  and  certification.     Said  year  limita- 
tion shall  begin  torun  in  the  caseof  any  person  on  the  dateof  his  first  such  appoint- 
Temporary  ap- ment :  Provided,  That  Avhenever  an  emergency  shall  arise  requiring  that  a  vacant 
pointment     for  position  in  any  internal-revenue  district  shail  be  filled  before  a  certificate  can  be 
emergency  in  in-  issued  by  the  Commission  and  an  appointment  made  thereto  in  the  manner  provided 
ternal-revenue  in  these  rules,  such  position  may  be  filled  without  regard  to  the  provisions  of  these 
district.  rules  by  temporary  appointment  for  a  period  not  to  exceed  thirty  days  and  only  for 


Of 


THE    MILITARY    LAWS    OF    THE    UNITED.  STATES.  43 

least  twice  in  each  year.  It  shall  be  the  duty  of  the  col-  licD0l£srsot  pub" 
lector,  postmaster,  and  other  officers  of  the  United  States, 
at  any  place  outside  of  the  District  of  Columbia  where 
examinations  are  directed  by  the  President  or  by  said 
board  to  be  held,  to  allow  the  reasonable  use  of  the  public 
buildings  for  holding  such  examinations,  and  in  all  proper 
ways  to  facilitate  the  same.  Sec.  57  ibid. 

90.  That  it  shall  be  the  duty  of  the  Secretary  of  the 
Interior    to  cause   suitable    and  convenient    rooms    and 
accommodations   to  be  assigned  or  provided  and  to  be  J|n-  jjj/  1883'  v- 
furnished,  heated  and  lighted,  at  the  city  of  Washington, 
for  carrying  on  the  work  of  said  Commission  and  said 

such  period  as  may  be  required  for  the  execution  of  the  necessary  details  of  an  Restrictions 
appointment  thereto  in  accordance  with  said  provisions,  but  no  person  shall  receive  upon  temporary 
such  temporary  appointment  who  within  the  ninety  days  next  previous  thereto  has  appointments  in 
been  separated  from  a  position  in  said  district  to  which  he  was  temporarily  appointed  internal-revenue 
under  the  provisions  of  this  section.  districts. 

14.  Whenever  a  temporary  appointment  shall  be  made  through  certification  from  When  tempo- 
the  eligible  registers  of  the  Commission  in  the  manner  provided  in  these  rules,  such  r  a  r  y  appoint- 
temporary  appointment  shall  in  no  case  continue  longer  than  six  months  and  shall  ment  must  cease. 
expire  by  limitation  at  the  end  of  that  period. 

RULE  IX. 

A  vacancy  in  any  position  which  has  been,  or  may  nereafter  be,  classified  under     Reinstate- 
the  civil-service  act,  may,  upon  requisition  of  the  proper  officer  and  the  certificate  ments  within  one 
of  the  Commission,  be  filled  by  the  reinstatement,  without  examination,  of  any  per-  year. 
son  who,  within  one  year  next  preceding  the  date  of  said  requisition,  has,  through 
no  delinquency  or  misconduct,  been  separated  from  a  classified  position  at  the  date 
of  said  requisition  and  in  that  Department  or  office  and  that  branch  of  the  service 
in  which  said  vacancy  exists:  Provided,  That  for  original  entrance  to  the  position     Position  to 
proposed  to  be  filled  by  reinstatement  there  is  not  required  by  these  rules,  iu  the  which  reiustate- 
opinion  of  the  Commission,  an  examination  involving  essential  tests  different  from  ment    may   be 
or  higher  than  those  involved  in  the  examination  for  original  entrance  to  the  posi-  made. 
tion  formerly  held  by  the  person  proposed  to  be  reinstated  :  And  provided  further,      Reinstatement 
That,  subject  to  the  other  conditions  of  these  rules,  any  person  who  served  in  the  of  preference 
military  or  naval  service  of  the  United  States  in  the  late  war  of  the  rebellion  and  claimants. 
was  honorably  discharged  therefrom,  or  the  widow  of  any  such  person,  may  be  rein- 
stated without  regard  to  the  length  of  time  he  or  she  has  been  separated  from  the 
service. 

RULE  X. 

Within  that  part  of  the  civil  service  of  the  United  States  which  has  been,  or  may     Transfers. 
hereafter  be,  classified  under  the  civil-service  act,  transfers  shall  be  governed  as 
follows  : 

1.  A  person  in  any  Department  or  office  may  be  transferred  within  the  same  De-      Transfers     in 
partment  or  office  and  the  same  branch  of  the  service  upon  any  test  of  fitness,  not  same      Depart- 
disapproved  by  the  Commission,  which  may  be  determined  upon  by  the  appointing  ment,    office,    or 
officer,  subject  to  the  limitations  of  the  provisos  of  section  2  of  this  rule.  branch   of  serv- 

2.  A  person  who  has  received  absolute  appointment  may  be  transferred  •without  ice. 
examination,  from  any  Department,  office,  or  branch  of  the  service,  upon  requisition      Transfers  from 
and  consent  ot  the  proper  officers,  and  the  certificate  of  the  Commission  :  Provided,  De  p  artm  e  n  t, 
That  no  transfer  shall  be  made  of  a  person  to  a  position  within  the  same  Depart-  office,  or  branch 
ment  or  office  and  the  same  branch  of  the  service,  or  to  a  position  in  another  De-  of  service. 
partment,  office,  or  branch  of  the  service,  if  from  original  entrance  to  such  position     Age    limita- 
said  person  is  barred  by  the  age  limitations  prescribed  therefor,  or  bvthe  provisions  tions    governing 
regulating  apportionment,  or  if  in  said  position  there  is  not  required,  in  the  judg-  transfers. 
ment  of  the  Commission,  the  performance  of  the  same  class  of  work,  or  the  practice 

of  the  same  mechanical  trade,  performed  or  practiced  in  the  position  from  which 

transfer  is  proposed  :  And  provided  further,  That  transfer  shall  not  be  made  without     When    exami- 

examination,  provided  by  the  Commission,  to  a  position  for  original  entrance  to  nations    are   re- 

which,  in  the  judgment  of  the  Commission,  there  is  required  by  these  rules  an  ex-  quired  for  trans- 

amination  involving  essential  tests  different  from  or  higher  than  those  involved  in  fers. 

the  examination  required  for  original  entrance  to  the  position  from  which  transfer  is     Employees 

proposed  ;  but  a  person  employed  in  any  grade  shall  not  because  of  such  employment  not  barred  from 

be  barred  from  the  open  competitive  examination  provided  for  original  entrance  to  open  competitive 

any  other  grade.  examinations. 

3.  Upon  requisition  of  the  proper  officer  and  the  certificate  of  the  Commission,      Transfer   from 
transfer  may  be  made  without  examination  from  the  office  of  the  President  of  the  the  office  of  the 
United  States,  after  continuous  service  therein  for  the  two  years  next  preceding  the  President. 

date  of  said  requisition,  to  any  position  classified  under  the  civil-service  act,  if  in 
said  position  there  is  required,  in  the  judgment  of  the  Commission,  the  performance 


44  THE   MILITARY    LAWS    OF   THE    UNITED    STATES. 

examinations,  and  to  cause  the  necessary  stationery  and 
other  articles  to  be  supplied  and  the  necessary  printing  to 
be  done  for  said  Commission.  See.  4,  ibid. 
.  91-  Tnat  anv  sa^  commissioner,  examiner,  copyist,  or 
messenger,  or  any  person  in  the  public  service  who  shall 
willfully  and  corruptly,  by  himself  or  in  co-operation  with 
one  or  more  other  persons,  defeat,  deceive,  or  obstruct  any 
person  in  respect  of  his  or  her  right  of  examination  accord- 


of  the  same  class  of  work  that  is  required  to  be  performed  in  the  position  from 
which  transfer  is  proposed. 

No  transfer  4.  Transfer  shall  not  be  made  from  an  excepted  position  to  a  position  not  excepted: 
from  excepted  to  Provided,  That  a  person  holding  an  excepted  position  at  the  time  said  position  is 
nonexcepted  po-  classified  under  the  civil-service  act,  or  a  person  holding  an  excepted  position  which 
sition  with  ex-  he  entered  prior  to  the  President's  order  of  November  2,  1894,  may,  subject  to  the 
ceptio'n.  other  conditions  and  provisions  of  this  rule,  be  transferred  to  a  position  not  ex- 

cepted. 

No  tran  s  f  er     5.  Transfer  shall  not  be  made  from  a  position  not  classified  under  the  civil-service 

from  unclassified  act  to  a  classified  position  :  Provided,  That  a  person  who,  by  promotion  or  transfer 

to   classified  po-  from  a  classified  position,  has  entered  a  position,  appointment  to  which  is  made  by 

sition,   with    ex-  the  President  by  and  with  the  advice  and  consent  of  the  Senate,  and  lias  served  con- 

ception. tiiiuously  therein  from  the  date  of  said  promotion  or  transfer,  may  be  retransferred 

from  said  Presidential  appointment  to  the  position  from  which  he  was  so  transferred 

or  to  any  position  to  which  transfer  could  be  made  therefrom. 

Transfer   from     6.  Transfer  shall  not  be  made  from  a  position  outside  the  District  of  Columbia  to 
position    outside  a  position  within  the  District  of  Columbia  except  upon  the  certificate  of  the  Corn- 
to  position  with-  mission,  subject  to  the  other  conditions  and  provisions  of  this  rule. 
in  District  of  Co- 
lumbia. 

Transfer  from  7.  Any  person  who  has  been  transferred  from  a  classified  position  to  another  classi 
one  classified  po-  fled  position  may  bo  retransferred  to  the  position  in  which  he  was  formerly  em 
sition  to  another  ployed,  or  to  any  position  to  which  transfer  could  be  made  therefrom,  without  regard 
classified  p  o  s  i  -  to  the  limitations  of  this  rule. 

tion.  8.  All  transfers  herein  authorized  shall  be  made  only  after  the  issuance  by  the 

Commission  of  the  certificates  therefor,  except   those  which  may  bo  specifically 
exempted  from  such  condition  by  regulation  of  the  Commission. 

Certificates  for     9.  Whenever  a  person  is  proposed  for  transfer  from  one  branch  of  the  service  to 

transfers.  another  branch  of  the  service,  and  from  a  part  of  the  service  not  within  the  provi- 

Farts  to  be  set  8^ons  regulating  apportionment  to  a  part  of  the  service  within  said  provisions,  and 

i'    tl         armlic'i   *ne  transfer  is  one  which,  under  the  provisions  of  this  rule,  may  be  allowed  without 

tin™  Vim  tmnqfttr   examination,  such  person  shall  be  required,  precedent  to  his  transfer,  to  file  a  state- 

ment  under  oath  setting  forth  the  same  facts  accompanied  by  the  same  certificates  or 

vouchers  relating  to  residence  as  may  be  required  in  an  application  for  examination. 

RULE  XI. 

Promotions.  1.  In  pursuance  of  the  requirements  of  section  7  of  the  civil-service  act,  competi- 
tive tests  or  examinations  shall,  as  far  as  practicable  and  useful,  be  established  to 
test  fitness  for  promotion  in  any  part  of  the  civil  service  of  the  United  State  which 
has  been,  or  may  hereafter  be,  classified  under  the  civil-service  act. 

Commission  to  2.  The  details'  regulating  promotions  shall  be  formulated  by  the  Commission  after 
formulate  details  consultation  with  the  heads  of  the  several  Departments,  bureaus,  or  offices.  It  shall 
regulating  p  r  o-  be  the  duty  of  the  head  of  each  Department,  bureau,  or  office,  when  such  regulations 
motions.  haATe  been  formulated,  to  promulgate  same,  and  any  amendments  or  revocations  thereof 

shall  be  approved  by  the  Commission  before  going  into  effect. 

Commission  to     3.  The  Commission  shall,  upon  the  nomination  of  the  head  of  each  Department, 

designate  boards  bureau,  or  office,  designate  and  select  a  suitable  number  of  persons,  not  less  than 

of  promotion.        three,  in  said  Department,  bureau  or  office,  to  be  members  of  a  board  of  promotion. 

In  the  Departments,  bureaus,  or  offices  in  Washington,  and  in  all  other  offices,  the 

members  of  any  board  of  examiners  shall  not  all  be  adherents  of  one  political  party, 

when  persons  of  other  political  parties  are  available  and  competent  to  serve  upon 

said  board. 

Promotions  be-     4.  Until  the  regulations  herein  authorized  have  been  approved  for  any  Depart- 

fore  adoption  of  ment,  bureau,  or  office,  in  which  promotion  regulations  approved  by  the  Commission 

regulations.  are  not  in  force,  promotions  therein  may  be  made  from  one  class  to  another  class 

which  is  in  the  same  grade,  and  from  one  grade  to  another  grade,  upon  any  test  of 

fitness,  not  disapproved  by  the  Commission,  which  may  be  determined  upon  by  the 

When    exam-  promoting  officer:  Provided,  That  no  promotion  of  a  person  shall  be  made,  except 

inations    are   re-  upon  examination  provided  by  the  Commission,  from  one  class  to  another  class,  or 

quired    for    pro-  from  one  grade  to  another  grade,  if  for  original  entrance  to  said  class  or  grade  to 

motions.  which  promotion  is  proposed  there  is  required  by  these  rules  an  examination  involv- 

ing essential  tests  different  from  or  higher  than  those  involved  in  the  examination 

required  for  original  entrance  to  the  class  or  grade  from  which  promotion  is  pro- 

Employees  not  posed:  And  provided  further,  That  no  promotion  of  a  person  shall  be  made,  except 

barred  from  open  upon  examination  provided  by  the  Commission,  to  a  position  in  which,  in  the  judg- 

competitive    ex-  raent  of  the  Commission,  there  is  not  required  the  performance  of  the  same  class  of 

animations.  work,  or  the  practice  of  the  same  mechanical  trade,  which  is  required  to  be  performed 

or  practiced,  in  the  position  from  which  promotion  is  proposed;  but  a  person 

employed  in  any  grade  shall  not,  because  of  such  employment,  be  barred  from  the 

Age  1  i  m  i  t  a  -  open  competitiAre  examination  provided  for  original  entrance  to  any  other  grade  :  And 

tions.  provided  further,  That  no  promotion  of  a  person  shall  be  made  to  a  class  or  grade 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  45 

ing  to  any  sucli  rules  or  regulations,  or  who  shall  willfully, 
corruptly,  and  falsely  mark,  grade,  estimate,  or  report 
upon  the  examination  or  proper  standing  of  any  person 
examined  hereunder,  or  aid  in  so  doing,  or  who  shall  will- 
fully and  corruptly  make  any  false  representations  con- 
cerning the  same  or  concerning  the  person  examined,  or 
who  shall  willfully  and  corruptly  furnish  to  any  person  any 
special  or  secret  information  for  the  purpose  of  either 


from  original  entrance  to  which  such  person  is  barred  by  the  ago  limitation  pre 
scribed  therefor  or  by  the  provisions  regulating  apportionment. 

RULE  XII. 

1.  In  pursuance  of  the  provisions  of  section  2  of  the  civil-service  act,  every  nomi-      List  of  all  posi- 
natiug  or  appointing  officer  in  the  executive  civil  service  of  the  United  States  shall  tions  and  employ- 
furnish  to  the  Commission  a  list  of  all  the  positions  and  employments  under  his  ments  to  be  fu'r- 
control  and  authority,  together  with  the  names,  designations,  compensations,  and  nished    to    Corn- 
dates  of  appointment  or  employment,  of  all  persons  serving  in  said  positions  or  mission, 
employments;   said  list  to  be  arranged  as  follows:   (a)   Classified  positions  not 

excepted  from  examination ;  (6)  classified  positions  excepted  from  examination ;  (c) 
unclassified  positions. 

2.  Every  nominating  or  appointing  officer  in  the  executive  civil  service  shall  report     Reports     of 
in  detail  to  the  Commission,  in  form  and  manner  to  be  prescribed  by  the  Commis-  changes  in  serv- 
sion,  all  changes,  as  soon  as  made,  and  the  dates  thereof,  in  the  service  under  his  ice  to  be  made  to 
control  and  authority,  setting  forth  among  other  things  the  following:  The  position  Commission. 

to  which  an  appointment  or  reinstatement  is  made;  the  position  from  which,  a 
separation  is  made,  whether  the  same  was  caused  by  dismissal,  resignation,  or 
death ;  and  the  position  from  which  and  the  position  to  which  a  transfer  or  promo- 
tion is  made;  the  compensation  of  every  position  from  which  or  to  which  a  change 
is  made;  the  name  of  every  person  appointed,  reinstated,  promoted,  transferred,  or 
separated  from  the  service ;  and  every  failure  to  accept  an  appointment  and  the 
reasons  therefor. 
Approved  May  6,  1896. 

GROVER  CLEVELAND. 

CLASSIFICATION  OF  EMPLOYEES  IN  THE  WAR  DEPARTMENT. 

DEPARTMENT  or  WAR, 

Washington,  June  10,  1896. 

By  direction  of  the  President  of  the  United  States,  and  in  accordance  with  the 
third  clause  of  section  6  of  the  act  entitled  "An  act  to  regulate  and  improve  the 
civil  service  of  the  United  States,"  approved  January  16,  1883,  it  is  ordered  that 
the  officers  and  employees  in  or  under  this  Department  included  within  the  provi- 
sions of  the  civil-service  law  and  rules  be,  and  they  are  hereby,  arranged  in  the 
following  classes  : 

Class  A.  All  persons  receiving  an  annual  salary  of  less  than  $720,  or  a  compensa- 
tion at  the  rate  of  less  than  $720  per  annum. 

Class  B.  All  persons  receiving  an  annual  salary  of  $720  or  more,  or  a  compensation 
at  the  rate  of  $720  or  more,  but  less  than  $840  per  annum. 

Class  C.  All  persons  receiving  an  annual  salary  of  $840  or  more,  or  a  compensation 
at  the  rate  of  $840  or  more,  but  less  than  $900  per  annum. 

Class  D.  All  persons  receiving  an  annual  salary  of  $900  or  more,  or  a  compensation 
at  the  rate  of  $900  or  more,  but  less  than  $1,000  per  annum. 

Claws  E.  All  persons  receiving  an  annual  salary  of  $1,000  or  more,  or  a  compensa- 
tion at  the  rate  of  $1,000  or  more,  but  less  than  $1,200  per  annum. 

Class  1.  All  persons  receiving  an  annual  salary  of  $1,200  or  more,  or  a  compensa- 
tion at  the  rate  of  $1,200  or  more,  but  less  than  $1,400  per  annum. 

Class  2.  All  persons  receiving  an  annual  salary  of  $1,400  or  more,  or  a  compensa- 
tion at  the  rate  of  $1,400  or  more,  but  less  than  $1^600  per  annum. 

Class  B.  All  persons  receiving  an  annual  salary  of  $1,600  or  more,  or  a  compensa- 
tion at  the  rate  of  $1,600  or  more,  but  less  than  $1,800  per  annum. 

Class  4.  All  persons  receiving  an  annual  salary  of  $1,800  or  more,  or  a  compensa- 
tion at  the  rate  of  $1,800  or  more,  but  less  than  $2,000  per  annum. 

Class  5.  All  persons  receiving  an  annual  salary  of  $2,000  or  more,  or  a  compensa- 
tion at  the  rate  of  $2,000  or  more,  but  less  than  $2,500  per  annum. 

Class  6.  All  persons  receiving  an  annual  salary  of  $2,500  or  more,  or  a  compensa- 
tion at  the  rate  of  $2,500  or  more  per  annum. 

It  is  provided ,  that  this  classification  shall  not  include  persons  appointed  to  an 
office  by  and  with  the  advice  and  consent  of  the  Senate,  nor  persons  employed 
as  mere  laborers  or  workmen;  but  all  positions  whose  occupants  are  designated 
as  laborers  or  workmen  and  who  were,  prior  to  May  6,  1896,  and  are  now,  regularly 
assigned  to  work  of  the  same  grade  as  that  performed  by  classified  employees,  shall 
be  included  within  this  classification.  Hereafter  no  person  who  is  appointed  as  a 
laborer  or  workman,  without  examination  under  the  civil-service  rules,  shall  be 
assigned  to  work  of  the  same  grade  as  that  performed  by  classified  employees. 

It  is  also  ordered,  that  no  person  shall  be  admitted  into  any  place  not  excepted 
from  examination  by  the  civil-service  rules,  in  any  of  the  classes  above  designated, 
until  he  shall  have  passed  an  appropriate  examination  prepared  by  the  United  States 
Civil  Service  Commission  and  his  eligibility  has  been  certified  to  this  Department 
by  said  Commission. 

JOSEPH  B.  DOE, 
Acting  Secretary  of  War. 


46  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

improving  or  injuring  the  prospects  or  chances  of  any 
person  so  examined,  or  to  be  examined,  being  appointed, 
employed,  or  promoted,  shall  for  each  such  offense  be 
deemed  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof,  shall  be  punished  by  a  fine  of  not  less  than  one 
hundred  dollars,  nor  more  than  one  thousand  dollars,  or  by 
imprisonment  not  less  than  ten  days,  nor  more  than  one 
year,  or  by  both  such  fine  and  imprisonment.  Sec.  5,  ibid. 
smiatioT  cla8"  92.  That  within  sixty  days  after  the  passage  of  this  act 
sec.  6,  ibid,  jt  shall  be  the  duty  of  the  Secretary  of  the  Treasury,  in 
as  near  conformity  as  may  be  to  the  classification  of  cer- 
tain clerks  now  existing  under  the  one  hundred  and  sixty- 
third  section  of  the  Revised  Statutes,  to  arrange  in  classes 
the  several  clerks  and  persons  employed  by  the  collector, 
naval  officer,  surveyor,  and  appraisers,  or  either  of  them, 
or  being  in  the  public  service,  at  their  respective  offices  in 
each  customs  district  where  the  Avhole  number  of  said 
clerks  and  persons  shall  be  altogether  as  many  as  fifty. 
And  thereafter,  from  time  to  time,  on  the  direction  of  the 
President,  said  Secretary  shall  make  the  like  classification 
or  arrangement  of  clerks  and  persons  so  employed,  in  con- 
nection with  any  said  office  or  offices,  in  any  other  customs 
district.  And,  upon  like  request,  and  for  the  purposes  of 
this  act,  said  Secretary  shall  arrange  in  one  or  more  of  said 
classes,  or  of  existing  classes,  any  other  clerks,  agents,  or 
persons  employed  under  his  department  in  any  said  dis- 
trict not  now  classified ;  and  every  such  arrangement  and 
classification  upon  being  made  shall  be  reported  to  the 
President. 
Post-office  Second.  Within  said  sixty  days  it  shall  be  the  duty  of 

classification. 

the  Postmaster- General,  in  general  conformity  to  said  one 
hundred  and  sixty- third  section,  to  separately  arrange  in 
classes  the  several  clerks  and  persons  employed,  or  in  the 
public  service,  at  each  post-office,  or  under  any  postmaster 
of  the  United  States,  where  the  whole  number  of  said 
clerks  and  persons  shall  together  amount  to  as  many  as 
fifty.  And  thereafter,  from  time  to  time,  on  the  direction 
of  the  President,  it  shall  be  the  duty  of  the  Postmaster- 
General  to  arrange  in  like  classes  the  clerks  and  persons 
so  employed  in  the  postal  service  in  connection  with  any 
other  post-office;  and  every  such  arrangement  and  classifi- 
cation upon  being  made  shall  be  reported  to  the  President. 
Third.  That  from  time  to  time  said  Secretary,  the  Post- 
master-General, and  each  of  the  heads  of  departments 
mentioned  in  the  one  hundred  and  fifty-eighth  section  of 
the  Revised  Statutes,  and  each  head  of  an  office  shall,  on 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  47 

the  direction  of  the  President,  and  for  facilitating  the  exe- 
cution of  this  act,  respectively  revise  any  then  existing 
classification  or  arrangement  of  those  in  their  respective 
departments  and  offices,  and  shall,  for  the  purposes  of  the 
examination  herein  provided  for,  include  in  one  or  more  of 
such  classes,  so  far  as  practicable,  subordinate  places, 
clerks,  and  officers  in  the  public  service  pertaining  to  their 
respective  departments  not  before  classified  for  examina- 
tion. Sec.  6,  ibid. 

93.  That  after  the  expiration  of  six  months  from  the    Examination 

required  tor  ap- 

passage  of  this  act  no  officer  or  clerk  shall  be  appointed,  p°illtment  and 

'  promotion. 

and  no  person  shall  be  employed  to  enter  or  be  promoted    sec.  7,  Una. 

in  either  of  the  said  classes  now  existing,  or  that  may  be 

arranged  hereunder  pursuant  to  said  rules,  until  he  has 

passed  an  examination,  or  is  shown  to  be  specially  exempted 

from  such  examination  in  conformity  herewith.     But  noth- 

ing herein  contained  shall  be  construed  to  take  from  those 

honorably  discharged  from  the  military  or  naval  service    Preference 

any  preference  conferred  by  the  seventeen  hundred  and 

fifty-fourth  section  of  the  Eevised  Statutes,1  nor  to  take 

from  the  President  any  authority  not  inconsistent  with 

this  act  conferred  by  the  seventeen  hundred  and  fifty-third 

section2  of  said  statutes;  nor  shall  any  officer  not  in  the 

executive  branch  of  the  Government,  or  any  person  merely 

employed  as  a  laborer  or  workman,  be  required  to  be  classi- 

fied hereunder;   nor,  unless  by  direction  of  the  Senate, 

shall  any  person  who  has  been  nominated  for  confirmation 

by  the  Senate  be  required  to  be  classified  or  to  pass  an 

examination.     Sec.  7,  ibid. 

94.  That  no  person  habitually  using  intoxicating  bever-    Persons  using 
ages  to  excess  shall  be  appointed  to,  or  retained  in,  any  bever  JgeC8atiiei£ 
office,  appointment,  or  employment  to  which  the  provisions  ment.to  appomt" 
of  this  act  are  applicable.     Sec.  8,  ibid.  Sec-  8'  ibid- 

95.  That  whenever  there  are  already  two  or  more  mem-    Members  of  a 
bers  of  a  family  in  the  public  service  in  the  grades  covered  "lecJo,  iWd. 
by  this  act,  no  other  member  of  such  family  shall  be  eligible 

to  appointment  to  any  of  said  grades.     Sec.  9,  ibid. 

96.  That  no  recommendation  of  any  person  who  shall 
apply  for  office  or  place  under  the  provisions  of  this 
which  may  be  given  by  any  Senator  or  Member  of  the 
House  of  Representatives,  except  as  to  the  character  or 
residence  of  the  applicant,  shall  be  received  or  considered 
by  any  person  concerned  in  making  any  examination  or 
appointment  under  this  act.     Sec.  10,  ibid. 


'Paragraph  84,  ante.  2 Paragraph  83,  ante. 


48  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

segments1  *  *'  97t  That  DO  Senator?  or  Representative,  or  Territorial 
sec.n,tMd.  Delegate  of  the  Congress,  or  Senator,  Representative,  or 
Delegate  elect,  or  any  officer  or  employee  of  either  of  said 
houses,  and  no  executive,  judicial,  military,  or  naval  officer 
of  the  United  States,  and  no  clerk  or  employee  of  any 
.  Department,  branch,  or  bureau  of  the  executive,  judicial, 
or  military  or  naval  service  of  the  United  States,  shall, 
directly  or  indirectly,  solicit  or  receive,  or  be  in  any  man- 
ner concerned  in  soliciting  or  receiving,  any  assessment, 
subscription,  or  contribution  for  any  political  purpose  what- 
ever from  any  officer,  clerk,  or  employee  of  the  United 
States,  or  any  Department,  branch,  or  bureau  thereof,  or 
from  any  person  receiving  any  salary  or  compensation  from 
moneys  derived  from  the  Treasury  of  the  United  States. 
Sec.  11,  ibid. 
Soliciting  con-  93.  That  no  person  shall,  in  any  room  or  building  occu- 

tribntioBB  rorpo-  J 

liiicai  purposes  pied  in  the  discharge  of  official  duties  by  any  officer  or 
Sec.  12,  ibid,     employee  of  the  United  States  mentioned  in  this  act,  or  in 
any  navy-yard,  fort,  or  arsenal,  solicit  in  any  manner  what- 
ever, or  receive  any  contribution  of  money  or  any  other 
thing  of  value  for  any  political  purpose  whatever.     Sec.  12, 
ibid. 
changeofrank     99    ^Q  officer  or  employee  of  the  United  States  men- 

or  compensation.  -1    m  * 

sec.  13,  iMc?.  tioned  in  this  act  shall  discharge,  or  promote,  or  degrade, 
or  in  any  manner  change  the  official  rank  or  compensation 
of  any  other  officer  or  employee,  or  promise  or  threaten  so 
to  do,  for  giving  or  withholding  or  neglecting  to  make  any 
contribution  of  money  or  other  valuable  thing  for  any  politi- 
cal purpose.  Sec.  13)  ibid. 

Political   con-     iQO.  That  no  officer,  clerk,  or  other  person  in  the  service 

tributionsforbid- 

de"ec  14  ibid  °^  ^ie  United  States  shall,  directly  or  indirectly,  give  or 
hand  over  to  any  other  officer,  clerk,  or  person  in  the  serv- 
ice of  the  United  States,  or  to  any  Senator  or  Member  of 
the  House  of  Representatives,  or  Territorial  Delegate,  any 
money  or  other  valuable  thing  on  account  of  or  to  be 
applied  to  the  promotion  of  any  political  object  whatever. 
Sec.  14,  ibid. 
Penalty  for  vio-  101.  That  any  person  who  shall  be  guilty  of  violating 

lation  of  preced-  J 

ing  sections.  any  provision  of  the  four  foregoing  sections  shall  be  deemed 
guilty  of  a  misdemeanor,  and  shall,  on  conviction  thereof, 
be  punished  by  a  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  for  a  term  not  exceeding  three  years, 
or  by  such  fine  and  imprisonment  both,  in  the  discretion  of 
the  court.  Sec.  15,  ibid. 
Applications  102.  That  hereafter  every  application  for  examination 

for   examination 

to^be  accompa-  before  the  Civil  Service  Commission  for  appointment  in  the 
cate of  residence.  Departmental  service  in  the  District  of  Columbia,  shall  be 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  -    49 

accompanied  by  a  certificate  of  an  officer,  with  his  official  g/^.Jgij1'  1890» v- 
seal  attached,  of  the  county  and  State  of  which  the  appli- 
cant claims  to  be  a  citizen,  that  such  applicant  was,  at  the 
time  of  making  such  application,  an  actual  and  bona  fide 
resident  of  said  county,  and  had  been  such  resident  for  a 
period  of  not  less  than  six  months  next  preceding; 

103.  But  this  provision  shall  not  apply  to  persons  who  ti^JJ5^JJf  sef' 
may  be  in  the  service  and  seek  promotion  or  appointment to  promotion, 
in  other  branches  of  the  Government.    Act  of  July  11, 

1890  (26  Stat.  L.,  235). 

104.  That  section  seventeen  hundred  and  fifty-six  of  the    Sa^'JU^g 
Kevised  Statutes  be,  and  the  same  is  hereby,  repealed ;  and  2> v-  &•  P-  22- ' 
hereafter  the  oath  to  be  taken  by  any  person  elected  or 
appointed  to  any  office  of  honor  or  profit  either  in  the  civil, 
military,  or  naval   service,  except  the  President  of  the 

United  States,  shall  be  as  prescribed  in  section  seventeen 
hundred  and  fifty-seven1  of  the  Revised  Statutes.  But 
this  repeal  shall  not  affect  the  oaths  prescribed  by  existing 
statutes  in  relation  to  the  performance  of  duties  in  special 
or  particular  subordinate  offices  and  employments.  Sec.  2, 
act  May  13,  1884  (23  Stat.  L.,  22). 

105.  That  the  provisions  of  this  act  shall  in  no  manner  ex^Jn  toria^etg* 
affect  any  right,  duty,  claim,  obligation,  or  penalty  nowet^a  ig  1884  g 
existing  or  already  incurred;  and  all  and  every  such  right,  3,  v.  23,  p.  22. ' 
duty,  claim,  obligation,  and  penalty  shall  be  heard,  tried, 

and  determined,  and  effect  shall  be  given  thereto,  in  the 
same  manner  as  if  this  act  had  not  been  passed.  Sec.  3, 
ibid. 

106.  Whenever  any  person  who  is  not  rendered  ineligible 
to  office  by  the  provisions  of  the  fourteenth  amendment  to 

the  Constitution  is  elected  or  appointed  to  any  office  of  Feb.  is,  mi, 
honor  or  trust  under  the  Government  of  the  United  States. 

„  ,  .  ,.    ..,..,,-,  Sec.  1757,  B.S. 

and  is  not  able,  on  account  of  his  participation  in  the  late 
rebellion,  to  take  the  oath  prescribed  in  the  preceding  sec- 
tion, he  shall,  before  entering  upon  the  duties  of  his  office, 
take  and  subscribe  in  lieu  of  that  oath  the  following  oath : 
"  I,  A  B,  do  solemnly  swear  (or  affirm)  that  I  will  support 
and  defend  the  Constitution  of  the  United  States  against 
all  enemies,  foreign  and  domestic;  that  I  will  bear  true 
faith  and  allegiance  to  the  same;  that  I  take  this  obliga- 
tion freely,  without  any  mental  reservation  or  purpose  of 
evasion ;  and  that  I  will  well  and  faithfully  discharge  the 
duties  of  the  office  on  which  I  am  about  to  enter.  So  help 
me  God."2 


JPar.  106. 

2For  definition  of  offiee  see  TJ.  S.  v.  Germaine,  99,  U.  S.,  508  and  Mouat  v.  TJ.  S.,  124 
TJ.  S.,  303.    See,  also,  note  1  to  paragraph  4  ante. 

1910 4 


50  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

who  may  ad-     iQ7.  The  oath  of  office  required  bv  the  preceding  section 

minister  oath.  ••  .  . 

Aug.  6,  1861,  c.  may  be  taken  before  any  officer  who  is  authorized  either  by 
326.8'  '  P  the  laws  of  the  United  States,  or  by  the  local  municipal 

1884%.  23,  p5.  22.  law,  to  administer  oaths,  in  the  State,  Territory,  or  l)is- 

sec.i758,R.s.  trict  where  such  oath  may  be  administered. 
Custody  of  oath.     108.  The  oath  of  office  taken  by  any  person  pursuant  to 
2,  1862,  p.  the  requirements  of  section  seventeen  hundred  and  fifty  - 


six,1  or  of  section  seventeen  hundred  and  fifty-seven,  shall 

'  be  delivered  in  by  him  to  be  preserved  among  the  files  of 

the  House  of  Congress,  Department,  or  court  to  which  the 

office  in  respect  to  which  the  oath  is  made  may  appertain. 

unauthorized     1Q9.  No  money  shall  be  paid  from  the  Treasury  to  any 

office,  no   salary  .  /  f 

for.  person  acting;  or  assuming'  to  act  as  an  officer,  civil,  mili- 

Ffcb.  9,  1863,  c.  *  '  '. 

25,  s.  2,  v.  12,  p.  tary,  or  naval,  as  salary,  m  any  office  when  the  office  is  not 
authorized  by  some  previously  existing  law,  unless  such 
'  office  is  subsequently  sanctioned  by  law. 

ceXi£a  appoint0     1  10-  ^  °  money  shall  be  paid  from  t  he  Treasury,  as  salary, 

c?esto<hiriiiaCre"  ^°  an^  Person  appointed  during  the  recess  of  the  Senate 

cess  of  senate.    to  fill  a  vacancy  iii  any  existing  office,  if  the  vacancy  ex- 

25F83b29V18i2)  p'  isfod  while  the  Senate  was  in  session  and  was  by  law  re- 

64k-  quired  to  be  filled  by  and  with  the  advice  and  consent  of 

sec.  HOI,  R.S.  the  Senate,  until  such  appointee  has  been  confirmed  by  the 

Senate. 


HI-  ^°  money  shall  be  paid  or  received  from  the  Treas- 
h°Marg2°vi867  c  urv?  or  Pai(*  or  received  from  or  retained  out  of  any  public 
154,  s.  9,  v.  14,  p.  moneys  or  funds  of  the  United  States,  whether  in  the  Treas- 
ury or  not,  to  or  by  or  for  the  benefit  of  any  person  ap- 
'  pointed  to  or  authorized  to  act  in  or  holding  or  exercising 
the  duties  or  functions  of  any  office  contrary  to  sections 
seventeen  hundred  and  sixty-  seven  to  seventeen  hundred 
and  seventy,  inclusive;  nor  shall  any  claim,  account, 
voucher,  order,  certificate,  warrant,  or  other  instrument 
providing  for  or  relating  to  such  payment,  receipt,  or  reten- 
tion, be  presented,  passed,  allowed,  approved,  certified,  or 
paid  by  any  officer,  or  by  any  person  exercising  the  func- 
tions or  performing  the  duties  of  any  office  or  place  of  trust 
under  the  United  States,  for  or  in  respect  to  such  office  or 
the  exercising  or  performing  the  functions  or  duties  thereof. 
Every  person  who  violates  any  of  the  provisions  of  this 
section  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  imprisoned  not  more  than  ten  years,  or  fined  not 
more  than  ten  thousand  dollars,  or  both. 

0fSesldby  V™  li2'  No  person'who  holds  an  office  the  salary  or  annual 
SooLCrbidden!comPensation  attached  to  which  amounts  to  the  sum  of 
two  tllousan(l  nve  hundred  dollars  shall  be  appointed  to  or 


i  .Repealed  by  act  of  May  13,  1884.     (23  Stat.  L.,  22). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  51 

hold  any  other  office  to  which  compensation  is  attached 
unless  specially  heretofore  or  hereafter  specially  authorized 
thereto  by  law;  but  this  shall  not  apply  to  retired  officers  Retired  officers 
of  the  Army  or  Navy  whenever  they  may  be  elected  to  '          ' 
public  office  or  whenever  the  President  shall  appoint  them 
to  office,  by  and  with  the  advice  and  consent  of  the  Senate.1 
8ec.  2,  act  of  July  31,  1894  (28  Stat.  L.,  205). 
113.  No  allowance  or  compensation  shall  be  made  to  any    Extra  services, 

17  no  compensation 

officer  or  clerk,  by  reason  of  the  discharge  of  duties  which  for,  except  espe- 
cially authorized 
belong  to  any  other  officer  or  clerk  in  the  same  or  any  other  i>y  law. 

Aiii*     26    184*^ 

Department;  and  no  allowance  or  compensation  shall  be ^202, s.  12, V. 5, P'. 
made  for  any  extra  services  whatever,  which  any  officer  or 
clerk  may  be  required  to  perform,  unless  expressly  author- 
ized by  law.2 

'The  traditions  arid  usages  of  the  United  States  recognize  the  policy  and  pro- 
priety of  employing,  when  necessary,  the  same  person  at  the  same  time  in  two  distinct 
capacities.  Not  to  mention  other  familiar  cases,  there  are  the  prominent  examples 
of  the  diplomatic  mission  of  Mr.  Jay  to  England,  under  President  Washington, 
while  he  was  still  Chief  Justice  of  the  United  States;  of  the  mission  of  Mr.  Gallatin 
to  London  and  St.  Petersburg,  to  negotiate  a  peace,  while  Secretary  of  the  Treasury 
under  President  Madison;  and  of  Mr.  Justice  Nelson,  sitting  as  a  member  of  the 
commission  which  concluded  the  treaty  of  Washington,  under  President  Grant. 
On  the  other  hand,  it  is  the  undoubted  aim  of  general  legislation  respecting  salaries 
to  gaitue  the  work  so  as  to  give  full  employment  to  the  capacities  of  the  man  likely 
to  be-  appointed  to  do  it,  and  to  measure  the  pay  according  to  the -work.  In  con 
strning  statutes  restraining  the  Executive  from  giving  dualor  extra  compensation, 
courts  have  aimed  to  carry  out  the  legislative  intent  by  giving  them  sufficient  flexi- 
bility not  to  injure  the  public  service  and  sufficient  rigidity  to  prevent  executive 
abuse.  Landram  v.  IT.  S.,  16  C.  Cls.  K.,  74,  82.  The  great  object  has  been  to  estab- 
lish by  law  the  compensation  for  public  services,  whether  in  offices  or  agencies, 
where  the  nature  and  character  of  the  duties  to  be  performed  were  sufficiently  known 
and  definite  to  enable  Congress  to  form  an  estimate  of  its  value,  and  not  leave  it  to 
the  discretion  of  the  head  of  an  Executive  Department.  *  *  *  These  sections  "can 
by  no  fair  interpretation  bo  held  to  embrace  an  employment  which  has  no  affinity  or 
connection,  either  in  its  character  or  by  law  or  usage,  with  the  line  of  his  official 
duty,  and  where  the  service  to  be  performed  is  of  a  different  character  and  for  a  dif- 
ferent place  and  the  amount  of  compensation  is  regulated  by  law.  *  *  *  The  just 
and  i'air  inference  from  these  acts  of  Congress  taken  together  is  that  no  discretion 
is  left  to  the  head  of  a  Department  to  allow  an  officer,  who  has  a  fixed  compensation, 
any  credit  beyond  his  salary,  unless  the  service  he  has  performed  is  required  by 
existing  laws  and  the  remuneration  for  them  is  fixed  by  law."  Converses.  TJ.  S', 
21  How.,  463,  470,  473;  U.  S.  v.  Brindle,  110  IT.  S.,  688,  694;  U.  S.  v.  Shoemaker,  7 
Wall.,  338;  Meigs  v.  IT.  S.,  19  C.  Cls.  11.,  497;  15  Opin.  Att.  Gen.,  608. 

A  question  having  arisen  as  to  the  payment  of  a  per  diem  to  the  members  and 
certain  employees  of  the  Bering  Sea  Tribunal  of  Arbitration,  it  was  held:  Aa  to 
Justice  Harlau  and  Senator  Morgan,  that  the  terms  of  section  1763  of  the  Revised 
Statutes,  as  amended  by  the  act  of  July  31,  1894  (28  Stat.  L.,  205),  did  not  apply,  as 
they  had  been  appointed  to  separate  and  distinct  offices  not  incompatible  with  the 
offices  of  justice  of  the  Supremo  Court,  Senator  of  the  United  States,  and  retired 
judge.  Payments  to  them  were  therefore  allowed.  U.  S.  v.  Saunders,  120  TJ.  S.,  126. 
As  to  Senator  Morgan,  it  waa  held  that  membership  of  a  tribunal  of  arbitration  did 
not  constitute  the  holding  of  office  under  the  authority  of  the  United  States  under 
article  1,  section  6,  of  the  Constitution,  and  that  Senator  Morgan  was  not  thereby 
prohibited  from  sitting  thereon.  The  payment  of  per  diem  allowances  to  clerks  and 
other  regular  employees  of  the  United  States,  who  had  been  detailed  from  the  several 
Executive  Departments  to  assist  the  tribunal  in  its  labors,  was  held  to  be  unau- 
thorized under  section  1765  of  the  Revised  Statutes.  Held,  tinder  this  section,  that 
a  major  and  paymaster  in  the  Army,  detailed  as  disbursing  officer  of  the  Bering 
Sea  Tribunal  of  Arbitration  at  Paris,  could  not  receiATe  any  other  allowances  or 
emoluments  than  those  specified  in  this  section  as  allowable  to  officers  of  the  Army. 
Compt,  Dec.,  1893-94,  275. 

A  compensation  for  extra  services,  where  no  certain  allowance  is  fixed  by  law, 
can  not  be  paid  by  the  head  of  a  Department  to  any  officer  of  the  Government  who 
has,  bylaw,  a  certain  compensation  in  the  office  he  holds.  10  Opin.  Att.  Gen.,  31. 
The  various  provisions  of  law  forbidding  extra  allowance  or  additional  pay  for  extra 
service,  imply  extra-service  pay  or  allowance  in  the  same  office,  not  distinct  service  in 
distinct  offices.  8  Opin.  Att.  Gen. ,325.  Where  the  service  is  one  required  bylaw, 
but  not  of  any  pai'ticular  official,  and  compensation  therefor  is  fixed  by  competent 
authority,  and  is  appropriated,  any  officer  who,  under  due  authorization,  performs 
the  service  is  entitled  to  the  compensation.  15  Opin.  Att.  Gen.,  608.  See  also  Con- 
verse admr.  v.  U.  S.,  21  How.,  463 ;  U.  S.  v.  Shoemaker,  7  Wall.,  338 ;  Stansbury  v.  U.  S., 
8  Wall.,  33.  But  see,  for  exception,  sec.  7,  act  of  June  3,  1896  (29  Stat.  L.,  235) . 

"Stausbury  v.  U.  S.,  8  Wall.,  33. 


52  THE    MILITARY    LAWS   OF   THE    UNITED    STATES. 


Extra  allow-     \\^t  J$Q  officer  in  any  branch  of  the  public  service,  or 

ances. 

Mar.  M83M.  any  other  person  whose  salary,1  pay,  or  emoluments  are 
Aug.  23,  1842,  c!  fixed  by  law  or  regulations,  shall  receive  any  additional 

183,  s.  2,  v.  5,  p.  I  •'  '  * 

510.  pay,  extra  allowance,  or  compensation,  in  any  form  what 

Sec.  1765,  B.S.  ever,  for  the  disbursement  of  public  money,  or  for  any 
other  service  or  duty  whatever,  unless  the  same  is  author- 
ized by  law  and  the  appropriation  therefor  explicitly 
states  that  it  is  for  such  additional  pay,  extra  allowance, 
or  compensation.2 

officer  in  ar-     115.  No  money  shall  be  paid  to  any  person  for  his  coin- 
jun.  25,  1828,  c.  pensatiou  who  is  in  arrears3  to  the  United  States,  until  he 
May'  20',  1836,  o.  has  accounted  for  and  paid  into  the  Treasury  all  sums  for 
which  he  may  be  liable.     In  all  cases  where  the  pay  or 
sec.  nee,  R.S.  sajarv  of  anv  persoil  js  withheld  in  pursuance  of  this  sec- 
tion, the  accounting  officers  of  the  Treasury,  if  required  to 
do  so  by  the  party,  his  agent  or  attorney,  shall  report  forth- 
with to  the  Solicitor  of  the  Treasury  the  balance  due,  and 
the  Solicitor  shall,  within  sixty  days  thereafter,  order  suit 
to  be  commenced  against  such  delinquent  and  his  sureties. 
President  is  authorized  to  make  out  and  deliver, 


154,  s.  G,  v.  14,  p.  after  the  adjournment  of  the  Senate,  commissions  for  all 
officers  whose  appointments  have  been  advised  and  con- 

Sec.l773,R.S. 


a>Nof«tments  to     ^^'  Whenever  the  President,  without  the  advice  and 

Tnmurary  ofconsen^  °f  tne  Senate,  designates,  authorizes,  or  employs 

1541  V  s  V8i47'  c'  any  Persou  to  perform  the  duties  of  any  office,  he  shall 

431'.  .'  forthwith  notify  the  Secretary  of  the  Treasury  thereof,  and 

sec.  1774,  B.S.  the  Secretary  of  the  Treasury  shall  thereupon  communicate 

such  notice  to  ail  the  proper  accounting  and  disbursing 

officers  of  his  Department. 

Notification  of     jig.  The  Secretary  of  the  Senate  shall,  at  the  close  of 

nominations,    re- 

jections, etc.,  to  each  session  thereof,  deliver  to  the  Secretary  of  the  Treas- 

Seerotaryof  ' 

Treasury.          ury,  and  to  each  of  the  Assistant  Secretaries  of  the  Treas- 

154,  8/7,  V.  14,'  p'.  ury,  and  to  each  of  the  Auditors,  and  to  each  of  the  Comp- 

trollers in  the  Treasury,  and  to  the  Treasurer,  and  to  the 

Sec-1775-B<s<  Register  of  the  Treasury,  a  full  and  complete  list,  duly 

certified,  of  all  the  persons  who  have  been  nominated  to 

and  rejected  by  the  Senate  during  such  session,  and  a  like 

list  of  all  the  offices  to  which  nominations  have  been  made 

and  not  confirmed  and  filled  at  such  session. 


1  Salary  is  fixed  when  it  is  at  a  stipulated  rate  for  a  definite  period  of  time ;  pay  or 
emolument  is  fixed  when  the  amount  is  agreed  upon  and  the  service  is  defined. 
Hedrick  v.  U.  S.,  16  C.  Cls.  R.,  88. 

2  See  note  1  to  paragraph  112,  supra. 

3  The  phrase  "  who  is  in  arrears  to  the  United  States"  contained  in  the  act  of  Jan- 
uary 25, 1828  (sec.  1766,  R.  S.),  applies  only  to  persons  who,  having  had  previous  trans- 
actions of  a  pecuniary  nature  with  the  Government,  are  found,  upon  the  settlement 
of  those  transactions,  to  be  in  arrears.     3  Opin.Att.  Gen.,52.     See  also  the  title 
Stoppages,  in  the  chapter  entitled  THE  PAY  DEPABTMENT. 

4  For  statutory  provisions  respecting  comiuisssions  in  the  Army  and  Navy  see  the 
chapter  entitled  COMMISSIONED  OFFICEBS. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  53 

119.  Whenever  any  public  office  is  removed  by  reason  ofol^moval  of 
sickness  which  may  prevail  in  the  town  or  city  where  it  is    Apr-  21,  isoe,  c. 
located,  a  particular  account  of  the  cost  of  such  removal 

,     .,  ,     f          „  Sec.  1776,  R.S. 

shall  be  laid  before  Congress. 

120.  The  various  officers  of  the  United  States  to  whom,    Preservation  of 

c,   .  -.      .         ™  T    /.        ,,  ,,  .  'copies  of  Statutes 

in  virtue  of  their  offices  and  lor  the  uses  thereof,  copies  of  at  Large. 
the  United  States  Statutes  at  Large,  published  by  Little,  ioo,'".gi,  v.9,p.75i 
Brown  and  Company,  have  been  or  may  be  distributed  at   sec.i777,R.s. 
the  public  expense,  by  authority  of  law,  shall  preserve  such 
copies,  and  deliver  them  to  their  successors  respectively  as 
a  part  of  the  property  appertaining  to  the  office.    A  printed 
copy  of  this  section  shall  be  inserted  in  each  volume  of  the 
Statutes  distributed  to  any  such  officers. 

121.  In  all  cases  in  which,  under  the  laws  of  the  United    Taking  oaths, 

ac  kno  wledg- 

States,  oaths  or  acknowledgments  may  now  be  taken  orme«ts,etc. 
made  before  any  justice  of  the  peace  of  any  State  or  Terri-  52,  v.  VP.  °458J 
tory,  or  in  the  District  of  Columbia,  they  may  hereafter  be  i59,ys.  i,'  v.  id,  p! 
also  taken  or  made  by  or  before  any  notary  public  duly  c.  sbo.TlofV.  is] 
appointed  in  any  State,  district,  or  Territory,  or  any  of  the  ml?  c!  BO£V.  io| 
commissioners  of  the  circuit  courts,  and,  when  certified  p'  206' 
under  the  hand  and  official  seal  of  such  notary  or  cominis-    Sec-1778»R-s» 
sioner,  shall  have  the  same  force  and  effect  as  if  taken  or 
made  by  or  before  such  justice  of  the  peace. 

122.  No  executive  officer,  other  than  the  heads  of  De-    Restriction 


partments,  shall  apply  more  than  thirty  dollars,  annually, 
out  of  the  contingent  fund  under  his  control,  to  pay  for  e  Mar.  3,  1339,  c. 
newspapers,  pamphlets,  periodicals,  or  other  books  or  prints  82' 
not  necessary  for  the  business  of  his  office.  Sec*  1779'  B*  s* 

123.  Every  officer  who  neglects  or  refuses  to  make  any   Failure  to  make 

,  .    ,     ,         .  ,     ,  ,  ,  returns    or    re- 

return  or  report  which  he  is  required  to  make  at  stated  ports. 


times  by  any  act  of  Congress  or  regulation  of  the  Depart-  201,  • 

ment  of  the  Treasury,  other  than  his  accounts,  within  the  18i 

time  prescribed  by  such  act  or  regulation,  shall  be  fined   Sec-1780»B-s- 

not  more  than  one  thousand  dollars  and  not  less  than  one 

hundred. 

124.  Every  member  of  Congress  or  any  officer  or  agent    Prohibition 

r-   ,i        /-,  i  i  .         ,  ,  .      ,  .  upon  taking  con- 

oi  the  Uovernment  who,  directly  or  indirectly,  takes,  re- 


curing  contracts. 

ceives,  or  agrees  to  receive,  any  money,  property,  or  other  offices,  etc. 
valuable  consideration  whatever,  from  any  person  for  pro-  i8o,uvT  i26'  p86!??  \ 
curing,  or  aiding  to  procure,  any  contract,  office,  or  place,  v.w',p^69&3>c'Glf 
from  the  Government  or  any  Department  thereof,  or  from    sec.i78i,R.s. 
any  officer  of  the  United  States,  for  any  person  whatever, 
or  for  giving  any  such  contract,  office,  or  place,  to  any  per- 
son whomsoever,  and  every  person  who,  directly  or  indi- 
rectly, offers  or  agrees  to  give,  or  gives,  or  bestows  any 
money,  property,  or  other  valuable  consideration  whatever. 


54  THE    MILITARY   LAWS    OF   THE   UNITED    STATES. 

for  the  procuring  or  aiding  to  procure  any  such  contract, 
office,  or  place,  and  every  member  of  Congress  Avho,  di- 
rectly or  indirectly,  takes,  receives,  or  agrees  to  receive 
any  money,  property,  or  other  valuable  consideration  what- 
ever after  his  election  as  such  member,  for  his  attention  to, 
services,  action,  vote,  or  decision  on  any  question,  matter, 
cause,  or  proceeding  which  may  then  be  pending,  or  may 
by  law  or  under  the  Constitution  be  brought  before  him  in 
his  official  capacity,  or  in  his  place  as  such  member  of  Con- 
gress, shall  be  deemed  guilty  of  a  misdemeanor,  and  shall 
be  imprisoned  not  more  than  two  years  and  fined  not  more 
than  ten  thousand  dollars.  And  any  such  contract  or 
agreement  may,  at  the  option  of  the  President,  be  declared 
alsolutely  null  and  void ;  and  any  member  of  Congress  or 
officer  convicted  of  a  violation  of  this  section,  shall,  more- 
over, be  disqualified  from  holding  any  office  of  honor,  profit, 
or  trust  under  the  Government  of  the  United  States.1 
Upon  taking  125.  No  Senator,  Representative,  or  Delegate,  after  his 

compensation  m  •  t 

matters  to  which  election  and  during  his  continuance  in  office,  and  no  head 

United  States  is 

a  party.  of  a  Department,  or  other  officer  or  clerk  in  the  einplov  ot 

Juno  11,   1864,     , 

c.  119, v.  is,  p.  123.  the  Government,  shall  receive  or  agree  to  receive  any  com- 
sec.  1782,  R.  s.  pensation  whatever,  directly  or  indirectly,  for  any  services 
rendered,  or  to  be  rendered,  to  any  person,  either  by  him- 
self or  another,  in  relation  to  any  proceeding,  contract,  claim, 
controversy,  charge,  accusation,  arrest,  or  other  matter  or 
thing  in  which  the  United  States  is  a  party,  or  directly  or 
indirectly  interested,  before  any  Department,  court-martial, 
Bureau,  officer,  or  any  civil,  military,  or  naval  commission 
whatever.  Every  person  offending  against  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  shall  be  im- 
prisoned not  more  than  two  years,  and  fined  not  more  than 
ten  thousand  dollars,  and  shall,  moreover,  by  conviction 
therefor,  be  rendered  forever  thereafter  incapable  of  hold- 
ing any  office  of  honor,  trust,  or  profit  under  the  Govern- 
ment of  the  United  States. 
Persons  inter  126.  No  officer  or  agent  of  anv  banking  or  other  conirner- 

estednottoactas 

agents  of  thecial  corporation,  and  no  member  of  any  mercantile  or  trad- 

Government.  .  *        .  . 

jtfar.  2, 1863,  c.  mg  firm,  or  person  directly  or  indirectly  interested  111  the 

698.8'  pecuniary  profits  or  contracts  of  such  corporation  or  firm, 

sec.  i788,u.s.  shall  be  employed  or  shall  act  as  an  officer  or  agent  of  the 

'  Sections  1781  and  1782  of  the  Revised  Statutes  mate  it  illegal  for  an  officer  of  the 
United  States  to  have  that  sort  of  connection  with  a  Government  contract  which  an 
agent,  attorney,  or  solicitor  assumes  when  he  procures,  or  aids  iu  procuring,  such 
contract  for  another,  or  when  he  prosecutes  for  another  any  claim  against  the  Gov- 
ernment founded  thereon.  14  Opin.  Att.  Gen.,  483.  But  there  is  in  the  statutes  no 
general  provision  whereby  officers  of  the  executive  branch  of  the  Government  are 
forbidden  to  contract  directly  with  the  Government  as  principals,  in  matters  sepa- 
rate from  their  offices  and  in  no  way  connected  with  the  performance  of  their  official 
duties ;  nor  are  those  officers  forbidden  to  be  connected  with  such  contracts,  after 
they  are  procured,  by  acquiring  an  interest  therein.  Ibid. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  55 

United  States  for  the  transaction  of  business  with  such  cor- 
poration or  firm ;  and  every  such  officer,  agent,  or  member, 
or  person,  so  interested,  who  so  acts,  shall  be  imprisoned 
not  more  than  two  years,  and  fined  not  more  than  two  thou- 
sand dollars  nor  less  than  five  hundred  dollars. 

127.  :NTo  officer,  clerk,  or  employee  in  the  United  States  c  ^^SLi' 
Government  employ  shall  at  any  time  solicit  contributions  P™^^ ctc''  *° 
from  other  officers,  clerks,  or  employees  in  the  Government  1]r®bj01>  18gg' c< 
service  for  a  gift  or  present  to  those  in  a  superior  official    Sec>1784  B  s 
position;  nor  shall  any  such  officials  or  clerical  superiors 

receive  any  gift  or  present  offered  or  presented  to  them 
as  a  contribution  from  persons  in  Government  employ  re- 
ceiving a  less  salary  than  themselves;  nor  shall  any  officer 
or  clerk  make  any  donation  as  a  gift  or  present  to  any  offi- 
cial superior.  Every  person  who  violates  this  section  shall 
be  summarily  discharged  from  the  Government  employ. 

128.  That  all  executive  officers  or  employees  of  the  United 
States  not  appointed  by  the  President,  with  the  advice  and 
consent  of  the  Senate,  are  prohibited  from  requesting,  giv-  ^r  political  p 
ing  to,  or  receiving  from,  any  other  officer  or  employee  °f  18^5%6i^u|rj 
the  Government,  any  money  or  property  or  other  thing  of 

value  for  political  purposes;  and  any  such  officer  or  em- 
ployee, who  shall  offend  against  the  provisions  of  this  sec- 
tion shall  be  at  once  discharged  from  the  service  of  the 
United  States ;  and  he  shall  also  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof  shall  be  fined  in  a  sum 
not  exceeding  five  hundred  dollars.1  Sec.  6,  act  of  August 
15,  1876  (19  Stat.  L.,  169). 

1  This  section  was  held  to  be  constitutional  by  the  Supreme  Court  in  Ex  parte 
Curtis,  106  U.  S.,  371. 


CHAPTER  V. 


THE    DEPARTMENT    OF    THE    TEEASUEY— THE 
ACCOUNTING  OFFICERS. 


Par. 

129.  The  Department  of  the  Treas- 

ury. 

130.  Public  accounts  to  be  settled 

in  the  Department  of  the 
Treasury. 

131.  Commencement  of  the  fiscal 

year. 


Par. 

132.  Transmission  of  monthly  ac- 

counts. Auditors  may  dis- 
approve requisitions  on 
delinquency.  Secretary  of 
Treasury  to  prescribe  rules 
for  rendition  of  accounts. 

133.  Secretary  of  Treasury  to  re- 

port delinquent  officers. 


129.  There  shall  be  at  the  seat  of  Government  an  Execu- 
Treasury.          tive  Department  to  be  known  as  the  Department  of  the 

Sept.  2,  1789,  c. 

12,  s.  i,  v.  i,  p.  65.  Treasury,  and  a  Secretary  of  the  Treasury,  who  shall  be 
sec.  233,  R.  s.  the  head  thereof. 


ACCOUNTS. 


of  th 


13°-  A11  claims  and  demands  whatever  by  the  United 
&ains^  them,  and  all  accounts  whatever  in  which 

Sec.  236,  B.  s.  United  States  are  concerned,  either  as  debtors  or  as 
creditors,  shall  be  settled  and  adjusted  in  the  Department 
of  the  Treasury.1 

1  Claims.—  In  the  performance  of  the  fluty  imposed  by  this  statute  the  Secretary 
of  the  Treasury  is  not  subject  to  the  control  of  the  courts  of  the  "Tinted  Stales  and, 
the  duty  not  being  ministerial  in  character,  a  writ  of  madamus  will  not  lie  to  compel 
the  allowance  of  a  claim  presented  under  the  statute.  Kendall  v.  Stockton,  12  Pet., 
524;  Decaturv.  Paulding,  14  Pet.,  497,  515;  U.  S.  v.  Gnthrie,  17  How.,  284,  304;  Bra- 
shear  v.  Mason,  G  How.,  92,  102.  Such  action  on  the  part  of  the  courts  would  also  be 
in  the  nature  of  entertaining  a  suit  against  the  United  States,  which  is  not  within 
their  jurisdiction.  U.  S.  v.  Guthrie,  17  How.,  284,  305. 

Where  a  claim  within  the  scope  of  Lis  official  authority  was  submitted  to  the  Sec- 
retary of  the  Treasury,  and  by  him  decided  adversely,  it  is  incompetent  for  his  offi- 
cial successor  to  set  the  same  aside  or  reopen  it  unless  there  has  been  a  mistake  in 
a  matter  of  fact  or  material  testimony  discovered  and  produced.  5  Opin.  Att.  Gen., 
604.  A  head  of  a  Department  of  the  Government  has  no  right  to  review  the  acts  of 
his  predecessors,  except  to  correct  an  error  of  calculation  .  Ho  cannot  recall  a  credit 
given  or  allowance  made.  Such  action  is  for  the  judiciary.  U.  S.  v.  Bank  of  Me 
tropolis,  15  Pet.,  377. 

Oompro-mise  of  claims.—  Claims  against  the  United  States  which  are  disputed  by 
the  officers  authorized  to  adjust  such  accounts  may  be  compromised,  and  if  the 
claimant  voluntarily  enters  into  such  a  compromise  and  accepts  a  smaller  sum  than 

56 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  57 

131.  The  fiscal  year  of  the  Treasury  of  the  United  States  commencement 

of  the  fiscal  year. 

in  all  matters  of  accounts,  receipts,  expenditures,  estimates,  20^uf  •  2<u&2,  c. 
and  appropriations,  except  accounts  of  the  Secretary  of536';  May8,vi872,' 
the  Senate  for  compensation  and  traveling  expenses  of  Sena-  P.  ei  ;  '  Mar.  3', 

,    ,  „    ,    ,      .  1873,  c.  226,  s.  1. 

commence  on  the  first  day  of  July  in  each  year;  v.  17,  p.  486. 


and  all  accounts  of  receipts  and  expenditures  required  by  sec.  227,  R.  s. 
law  to  be  published  annually  shall  be  prepared  and  pub- 
lished for  the  fiscal  year  as  thus  established.  The  fiscal 
year  for  the  adjustment  of  the  accounts  of  the  Secretary 
of  the  Senate  for  compensation  and  traveling  expenses  of 
Senators1  shall  extend  to  and  include  the  third  day  of  July. 
132.  All  monthly  accounts  shall  be  mailed  or  otherwise  Transmission 

or  monthly,  etc., 

sent  to  the  proper  officer  at  Washington  within  ten  days  accounts. 

after  the  end  of  the  month  to  which  they  relate,  and  quar-  1894,  v.  28,  p.  209'. 

terly  and  other  accounts  within  twenty  days  after  the  pe- 

riod to  which  they  relate,  and  shall  be  transmitted  to  and 

received  by  the  Auditors  within  twenty  days  of  their  actual 

receipt  at  the  proper  office  in  Washington  in  the  case  of 

monthly,  and  sixty  days  in  the  case  of  quarterly  and  other 

accounts.     Should  there  be  any  delinquency  in  this  regard   .Auditor    may 

at  the  time  of  the  receipt  by  the  Auditor  of  a  requisition  uisffionsVonrde- 

for  an  advance  of  money,  he  shall  disapprove  the  requisi- 

tion, which  he  may  also  do  for  other  reasons  arising  out  of 

the  condition  of  the  officer's  accounts  for  whom  the  ad- 

vance is  requested;  but  the  Secretary  of  the  Treasury  may 

overrule  the  Auditor's  decision  as  to  the  sufficiency  of  these 

latter  reason  s  :  Provided,  That  the  Secretary  of  the  Treasury    Provisos. 

shall  prescribe  suitable  rules  and  regulations,  and  may  make  Treasoryto  pro. 

order  sin  particular  cases,  relaxing  the  requirement  of  mail-  reSution  of  ££ 

ing  or  otherwise  sending  accounts,  as  aforesaid,  within  ten  co 

the  claim  and  executes  a  discharge  in  full  for  the  whole  claim,  he  is  bound  by  the 
adjustment  and  can  not  sue  for  what  he  has  voluntarily  relinquished.  Sweeny  v. 
U.  S.,  17  Wall.,  75,  77;  Mason  v.  U.  S.,  ibid,  67. 

Set-off.—  When  a  person  is  both  debtor  and  creditor  of  the  United  States,  in  any 
form,  the  officers  of  the  Treasury  Department  in  settling  the  accounts,  not  only  have 
the  power,  but  are  required,  in  the  proper  discharge  of  their  duties,  to  set  oft'  the  one 
indebtedness  against  the  other,  and  to  allow  and  certify  for  payment  only  the  bal- 
ance found  due  on  one  side  or  the  other.  *  *  *  The  right  of  set-oft'  in  such  cases 
exists  independently  of  these  enactments  (sec.  1766,  Rev.  Stat.,  and  the  act  of  March 
3,  1875;  1  Sup.  to  Key.  Stat.,  185),  and  is  founded  upon  what  is  now  section  236  of  the 
Revised  Statutes.  Taggart  v.  U.  S.,  17,  C.  Cls.  R.,  322,  327  ;  McKnight's  Case,  13  ibid., 
292;  Bonnafon's,  Case,  14  ibid.  ,489;  Howes  w.  U.S.,  24  ibid.,  170;  Reeside  v.  Walker,  11 
How.,  272,  290.  The  power  in  the  matter  of  set-otts  conferred  upon  the  Secretary  of 
the  Treasury  by  the  act  of  March  3,  1875  (18  Stat.  L.,  481),  is  exclusive,  and  can  not 
be  exercised  by  the  courts.  U.  S.  v.  Griswold,  30  Fed.  Rep.,  604. 

Settled  accounts  in  the  Treasury  Department,  where  the  United  States  have  acted 
on  the  settlement  and  paid  the  balance  therein  found  due,  can  not  he  opened  or  set 
aside  years  afterwards  merely  because  some  of  the  prescribed  steps  in  the  account- 
ing which  it  was  the  duty  of  a  head  of  a  Department  to  see  had  been  taken  had  in 
fact  been  omitted,  or  on  account  of  technical  irregularities  when  the  remedy  of  the 
party  against  the  United  States  is  barred  by  the  statute  of  limitation  and  the  reme- 
dies of  the  United  States  are  intact,  owing  to  its  not  being  subject  to  an  act  of  limi- 
tation. U.  S.  fl.  Johnston,  124  U.  S.,  236,  1  Compt.  Dec.,  192.  ' 

•Extendedby  section  9,  act  of  October  1,  1890  (26  Stat.  L.,G4f>),  to  include  the 
accounts  of  the  Sergeant-at-Arms  of  the  House  of  Representatives  for  compensa- 
tion and  mileage  of  Members  and  Delegates. 


58  THE    MILITARY   LAWS    OP   THE    UNITED    STATES. 

or  twenty  days,  or  waiving  delinquency,  in  such  cases 
only  in  which  there  is,  or  is  likely  to  be,  a  manifest  phys- 
ical difficulty  in  complying  with  the  same,  it  being  the  pur- 
pose of  this  provision  to  require  the  prompt  rendition  of 
accounts  without  regard  to  the  mere  convenience  of  the 
officers,  and  to  forbid  the  advance  of  money  to  those  del  in - 
s"  (luent  iu  rendering  them:  Provided  further,  That  should 
there  be  a  delay  by  the  administrative  Departments  be- 
yond the  aforesaid  twenty  or  sixty  days  in  transmitting 
accounts,  an  order  of  the  President  [or,  in  the  event  of 
the  absence  from  the  seat  of  Government  or  sickness  of  the 
President,  an  order  of  the  Secretary  of  the  Treasury]  in  the 
particular  case  shall  be  necessary  to  authorize  the  advance 
of  money  requested:  And  provided  further,  That  this  sec- 
tion shall  not  apply  to  accounts  of  the  postal  revenue  and 
expenditures  therefrom,  which  shall  be  rendered  as  now 
required  by  law.1  Sec.  12,  act  of  July  31,  1894. 

TrSetcsruryryto  ref  133«  The  Secretary  of  the  Treasury  shall,  on  the  first 
officers  inq"ent  Monday  of  January  in  each  year,  make  report  to  Congress 
1896° v  29^179'  °^  sucn  officers  and  administrative  departments  and  offices 
of  the  Government  as  were,  respectively,  at  any  time  dur- 
ing the  last  preceding  fiscal  year  delinquent  in  rendering 
or  transmitting  accounts  to  the  proper  offices  in  Washington 
and  the  cause  therefor,  and  in  each  case  indicating  whether 
the  delinquency  was  waived,  together  with  such  officers, 
including  postmasters  and  officers  of  the  Post-Office  De- 
partment, as  were  found  upon  final  settlement  of  their 
accounts  to  have  been  indebted  to  the  Government,  with 
the  amount  of  such  indebtedness  in  each  case,  and  who,  at 
the  date  of  making  report,  had  failed  to  pay  the  same  into 
the  Treasury  of  the  United  States.2  Sec.  4,  act  of  May  28, 
1896  (29  Stat.  L.,  179). 

1  Amended  by  the  insertion  of  the  clause  in  brackets  by  section  4  of  the  act  of 
March  2, 1895.     (28  Stat.  L.,  817.) 

2  Section  8  of  the  act  of  July  31, 1894,  provides  "that  the  balances  that  may  be 
certified  from  time  to  time  by  the  Auditors  in  the  settlement  of  public  accounts 
shall  be  final  and  conclusive  upon  the  Executive  Departments  of  the  Government, 
except  that  any  person  whose  accounts  may  have  been  settled,  the  head  of  a  Depart- 
ment, or  of  the  board,  commission,  or  establishment,  not  under  the  jurisdiction 
of  an  Executive    Department,   or  the  Comptroller  of  the  Treasury  may,  within  a 
year,  obtain  a  revision  of  the  account  by  the  Comptroller  of  the  'Treasury,  whose 
decision  upon  such  revision  shall  bo  iinal  and  conclusive  upon  the  executive  branch 
of  the  Government:  Provided,  That  the  Secretary  of  the  Treasury  may,  when  in 
his  judgment  the  interests  of  the  Government  require  it,  suspend  payment  and 
direct  the  reexaminatiou  of  any  account."    Sec.  8,  actof  July  31, 1894  (28  Stat.  L.,  207.) 

Section  260  of  the  Revised  Statutes  requires  that  the  Secretary  of  the  Treasury 
shall  lay  before  Congress  at  the  commencement  of  each  regular  session,  accompany- 
ing his  annual  statement  of  the  public  expenditure,  the  reports  which  may  be  made 
to  him  by  the  Auditors  charged  with  the  examination  of  the  accounts  of  the  Depart- 
ment of  War  and  the  Department  of  the  Navy,  respectively,  showing  the  application 
of  the  money  appropriated  for  those  Departments  for  the  preceding  year. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


59 


THE   ACCOUNTING   OFFICERS. 


Par. 

134.  The  Comptroller  of  the  Treas- 

ury. 

135.  Comptroller   to   prescribe 

forms. 

136.  Comptroller's  decision  to  gov- 

ern in  accounts. 

137.  Comptroller  may  direct  settle- 

ment of  particular  accounts. 

138.  Auditors    of    the    Treasury; 

duties. 

139.  Auditor  for  War  Department. 

140.  Auditors  to  recover  debts. 

141.  Certified  balances  conclusive 

on  Executive  Departments. 

142.  Certificate  of  differences  on 

revision. 

143.  Accepting  payment  on  Audi- 

tor's settlement  conclusive. 
Suspensions. 

144.  Auditors  to  preserve  accounts. 

145.  Decisions  of  Auditors   to  be 

examined,   etc.,   by  Comp- 
troller. 

146.  Requisitions  for  advances  of 

funds.     Warrants. 

147.  The  Division  of  Bookkeeping 

and  Warrants. 

148.  The  Secretary  of  the  Treasury 

to  report  delinquents. 

149.  Examination    of     certain 

claims. 

150.  Certification  of  Treasury  rec- 

ords. 


Par. 

151.  Revision  of  accounts  pending 

on  October  1,  1894. 

152.  Sectretary  of  Treasury  to 

make  rules  for  new  method 
of  accounting,  etc. 

153.  Rules  to  be  made  by  heads 

of  Executive  Departments? 
etc. 

154.  Comptroller,  Auditors,    etc., 

not  new  offices. 

155.  Transfer  of   duties  to  Audi- 

tors. 

156.  Settled  claims  not  to  be  re- 

opened. 

157.  New  system  of  accounting  in 

force  October  1,  1894, 

158.  Duties  of   Auditor  for  War 

and  Navy  Departments. 

159.  Settlement    of    accounts    of 

Army  officers. 

160.  Settlement  of  advance  boun. 

ties  paid  by  paymasters. 

161.  Settlement  of  overpayments 

by  paymasters. 

162.  Evidence  of    honorable   dis. 

charge  to   bo  returned   to 
officers  and  enlisted  men. 

163.  Allowance  of  lost  checks. 

164.  Claims    for    quartermasters' 

stores. 

165.  Claims  for  subsistence. 


THE  COMPTROLLER  OF  THE  TREASURY. 

134.  The  offices  of  Commissioner  of  Customs,  Deputy  Coin-    The  Comptrol- 
ler of  the  Treas- 

missioner  of  Customs,  Second  Comptroller,  Deputy  Second  "ry. 
Comptroller,  and  Deputy  First  Comptroller  of  the  Treas- 1894,^.28^.206.' 
ury  are  abolished,  and  the  First  Comptroller  of  the  Treas- 
ury shall  hereafter  be  known  as  Comptroller  of  the 
Treasury.  He  shall  perform  the  same  duties  and  have 
the  same  powers  and  responsibilities  (except  as  modified 
by  this  act)  as  those  now  performed  by  or  appertaining  to 
the  First  and  Second  Comptrollers  of  the  Treasury  and  the 
Commissioner  of  Customs;  and  all  provisions  of  law  not 
inconsistent  with  this  act,  in  any  way  relating  to  them  or 
either  of  them,  shall  hereafter  be  construed  and  held  as 
relating  to  the  Comptroller  of  the  Treasury.  His  salary 
shall  be  five  thousand  five  hundred  dollars  per  annum. 
There  shall  also  be  an  Assistant  Comptroller  of  the  Treas- 
ury, to  be  appointed  by  the  President,  with  the  advice  and 


60  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

consent  of  the  Senate,  who  shall  receive  a  salary  of  five 
thousand  dollars  per  annum,  and  a  chief  clerk  in  the  office 
of  the  Comptroller  of  the  Treasury,  who  shall  receive  a 
salary  of  two  thousand  five  hundred  dollars  per  annum. 
Sec.  4,  act  of  July  31,  1891  (28  Stat.  L.,  206). 

presSe0£^°      135t  The  Comptroller  of  the  Treasury  shall,  under  the 

otsec  5  ibid       direction  of  the  Secretary  of  the  Treasury,  prescribe  the 

forms  of  keeping  and  rendering  all  public  accounts,  except 

those  relating  to  the  postal   revenues   and   expenditures 

therefrom.1     Sec.  5,  ibid. 

dedsSn^to1^8-  1^6.  Disbursing  officers,  or  the  head  of  any  Executive 
ersecC8°$X!?'  Department,  or  other  establishment  not  under  any  of  the 
Executive  Departments,  may  apply  for  and  the  Comptroller 
of  the  Treasury  shall  render  his  decision  upon  any  question 
involving  a  payment  to  be  made  by  them  or  under  them, 
which  decision,  when  rendered,  shall  govern  the  Auditor 
and  the  Comptroller  of  the  Treasury  in  passing  upon  the 
account  containing  said  disbursement.2  Sec.  8,  ibid. 


ma  °direct80ettfcr     *^'  ^®  Comptroller  of  the  Treasury,  in  any  case  where, 
ment  of  particn-  in  his  opinion,  the  interests  of  the  Government  require  it, 

lar  accounts. 

July  si,  1894,  shall  direct  any  of  the  Auditors  forthwith  to  audit  and 
'sec.  6^  ibid.  settle  any  particular  account  which  such  Auditor  is 
sec.  271,  R.  s.  authorized  to  audit  and  settle.  Sec.  6,  ibid. 

THE   AUDITORS   OF   THE   TREASURY. 

°f     138<  Tlie  Auditor  s  of  the  Treasury  shall  hereafter  be 
06  designated  as  follows  :  The  First  Auditor  as  Auditor  for 
the  Treasury  Department;  the  Second  Auditor  as  Auditor 
for   the  War   Department;   the  Third  Auditor  as  Audi- 


1  So  much  of  section  248,  Revised  Statutes,  as  authorizes  the  Secretary  of  the 
Treasury  to  prescribe  the  forms  of  keeping  and  rendering  all  public  accounts,  except 
those  relating  to  the  postal  revenue  and  expenditures  therefrom,  is,  by  section  5  of 
the  act  of  July  31,  1894,  vested  in  the  Comptroller  of  the  Treasury.    (28  Stat.  L.,  206.) 

2  Under  the  provisions  of  the  act  of  July  31,  1894,  the  Comptroller  of  the  Treasury 
is  authorized  to  render  decisions,  in  advance  of  the  settlement  of  accounts,  only  upon 
the  request  of  a  disbursing  officer  or  the  head  of  an  Executive  Department,  as  pro- 
vided in  section  8  of  said  act.    1  Compt.  Dec.,  87. 

Under  section  8  of  the  act  of  July  31,  1894,  the  Comptroller  of  the  Treasury  is 
authorized  to  render  decisions,  on  the  application  of  a  disbursing  officer  or  the  head 
of  an  Executive  Department,  only  upon  questions  involved  inpayments  to  bo  made 
by  them  or  under  them,  and  until  the  head  of  a  Department  having  control  of  an 
appropriation  determines  to  apply  it  to  >a  particularpnrpo.se  thereis  no  question  which 
can  be  properly  submitted  for  the  Comptroller's  decision.  Ibid.,  89.  The  Comp- 
troller is  not  authorized  to  render  a  decision  at  the  request  of  the  Secretary  of  the 
Treasury  when  the  question  involved  concerns  the  use  of  an  appropriation  under 
the  control  of  the  Secretary  of  War.  Ibid.,  317. 

When  an  expense  has  not  yet  been  incurred,  and  a  decision  of  the  Comptroller  is 
desired  for  the  guidance  of  'a  Department,  the  request  therefor  should  be  presented 
by  the  head  of  the  Department  having  control  of  the  appropriation,  and  not  by  the 
disbursing  officer.  Ibid.,  500. 

Under  section  8  of  this  statute,  authorizing  an  application  by  the  head  of  an 
Executive  Department  to  the  Comptroller  of  the  Treasury  for  the  revision  of  an 
account  settled  by  an  Auditor,  the  Comptroller  has  no  jurisdiction  to  entertain  such 
an  application  when  made  by  the  head  of  a  Bureau  of  a  Department.  Ibid.,  199. 
Nor  can  such  a  decision  be  rendered  upon  the  application  of  an  Auditor.  Ibid.,  78. 

Requests  for  the  decision  of  the  Comptroller  under  section  8  of  the  act  of  July  31, 
1894,  must  be  made  by  the  disbursing  officer  himself,  and  not  by  an  attorney  author- 
ized to  represent  him  in  the  settlement  of  his  account.  Ibid.,  502.  The  Comptroller 
is  authorized  to  render  a  decision  upon  the  request  of  a  disbursing  officer  only  when 
the  question  submitted  is  one  involved  in  a  payment  which  he  has  been  directed,  by 
general  or  special  order,  to  make.  Ibid.,  500. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  61 

tor  for  the  Interior  Department  5  the  Fourth  Auditor  as 
Auditor  for  the  Navy  Department;  the  Fifth  Auditor 
as  Auditor  for  the  State  and  other  Departments;  the 
Sixth  Auditor  as  Auditor  of  the  Post-Office  Department. 
The  designations  of  the  deputy  auditors  and  other  subordi- 
nates shall  correspond  with  those  of  the  Auditors.  And 
each  deputy  auditor,  in  addition  to  the  duties  now  required  Duties. 
to  be  performed  by  him,  shall  sign,  in  the  name  of  the 
Auditor,  such  letters  and  papers  as  the  Auditor  may 
direct.  Sec.  5,  act  of  July  31,  1894  (28  Stat.  L.,  206). 

139.  Accounts  shall  be  examined  by  the  Auditors  as  fol-  wAudigr   f  or 
lows:    *    *    *    Second.  The  Auditor  for  the  War  Depart-  ment. 

ment  shall  receive  and  examine  all  accounts  of  salaries  and 
incidental  expenses  of  the  office  of  the  Secretary  of  War  and 
all  bureaus  and  offices  under  his  direction,  all  accounts1  re- 
lating to  the  military  establishment,  armories  and  arsenals, 
national  cemeteries,  fortifications,  public  buildings  and 
grounds  under  the  Chief  of  Engineers,  rivers  and  harbors, 
the  Military  Academy,  and  to  all  other  business  within  the 
jurisdiction  of  the  Department  of  War,  and  certify  the  bal- 
ances arising  thereon  to  the  Division  of  Bookkeeping  and 
Warrants,  and  send  forthwith  a  copy  of  each  certificate 
to  the  Secretary  of  War.  2  tSec.  7,  ibid. 

140.  The  Auditors,  under  the  direction  of  the  Comptroller  TO4veVdebts8  to 
of  the  Treasury,  shall   superintend  the  recovery  of  all    See4>  ibid- 
debts  finally  certified  by  them,  respectively,  to  be  due  to 

the  United  States.     Sec.  4,  ibid. 

141.  The  balances  which  may  from  time  to  time  be  certi- 


fied  by  the  Auditors  to  the  Division  of  Bookkeeping  and  on  Executive  De- 

partments, etc. 

Warrants,  or  to  the  Postmaster-General,  upon  the  settle-    Sec-  8'  ibid- 
ments  of  public  accounts,  shall  be  final  and  conclusive  upon 
the  Executive  Branch  of  the  Government,  except  that  any 


'An  account  is  something  which  may  be  adjusted  and  liquidated  by  an  arithmeti- 
cal computation.  One  set  of  Treasury  officers  examine  and  audit  the  accounts; 
another  set  is  intrusted  with  the  power  of  reviewing  that  examination  and  with  the 
further  power  of  determining  whether  the  laws  authorize  the  payment  of  the 
account  when  liquidated.  But  no  law  authorizes  Treasury  officials  to  allow  and 
pass  in  accounts  a  number  not  the  result  of  arithmetical  computation,  upon  a  sub- 
ject within  the  operation  of  the  mutual  part  of  a  contract.  Power  v.  U.  S.,  18  C. 
Cls.  K.,  263,  275.  A  voucher  given  by  an  officer  of  the  Government,  in  the  regular 
'  and  ordinary  course  of  his  business,  for  services  rendered,  or  articles  purchased 
for  the  public  service,  within  the  scope  of  his  authority  and  the  line  ot  his  duty 
unimpeached,  is  prima  facie  evidence  of  indebtedness  on  the  part  of  the  United 
States,  as  therein  stated.  Parish  v.  U.  S.,  2  C.  Cls.  K.,  341;  Solomon  v.  U.  S.,  19 
Wall.,  17:  and  9  C.  Cls.  K.,  54.  In  this  respect  the  executive  officers  who  are 
authorized  to  make  contracts,  employ  services,  or  purchase  property  for  the  public 
service,  and  whose  duty  it  is  to  see  to  it  that  the  money  certified  by  them  to  be 
due  has  been  actually  and  fairly  earned,  within  their  own  knowledge,  while  acting 
in  their  official  capacity,  differ  from  the  certified  balances  of  the  accounting  officers. 
In  the  examination  of  claims  in  the  Treasury  Department  these  accounting  officers 
act  wholly  upon  the  evidence  presented  to  them  by  others,  and  have  themselves  no 
personal  knowledge  of  the  facts  upon  which  the  claims  are  founded.  It  is  one  of 
the  fundamental  principles  upon  which  that  Department  is  established,  and  a  useful 
and  nice  one  it  is,  that  the  executive  officers  who  pass  upon  public  accounts  shall  be 
different  from  those  who  are  authorized  to  make  contracts  and  incur  liabilities  in 
the  expenditure  of  public  money.  McCann  v.  U.S.,  18  C.  Cls.  R.,  445,  447.  The 
accounts  under  a  contract  remain  open  so  long  as  anything  remains  to  be  adjusted 
or  paid.  Parker  r.  U.  S.,  26  C.  Cls.  R.,  344. 
2For  additional  duties  of  this  officer  see  paragraph  158  post. 


62  'THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

person  whose  accounts  may  have  been  settled,  the  head 
of  the  Executive  Department,  or  of  the  board,  commission, 
or  establishment  not  under  the  jurisdiction  of  an  Execu- 
tive Department,  to  which  the  account  pertains,  or  the 
Comptroller  of  the  Treasury,  may,  within  a  year,  obtain  a 
Revision  revision  of  the  said  account  by  the  Comptroller  of  the 
Treasury,  whose  decision  upon  such  revision  shall  be  final 
and  conclusive  upon  the  Executive  Branch  of  the  Govern- 
ti)Reexainina-meilt:  Provided,  That  the  Secretary  of  the  Treasury  may, 
when  in  his  judgment  the  interests  of  the  Government 
require  it,  suspend  payment  and  direct  the  reexamination 
of  any  account.  *  *  *  Sections  one  hundred  and  ninety- 
one  and  two  hundred  and  seventy  of  the  Revised  Statutes 
are  repealed.1  Sec.  8,  ibid. 
Certificate  of  142,  Upon  a  certificate  by  the  Comptroller  of  the  Treasury 

differences  on  re-  .    . 

vision.  of  any  differences  ascertained  by  him  upon  revision  the 

Auditor  who  shall  have  audited  the  account  shall  state  an 
account  of  such  differences,  and  certify  it  to  the  Division 
of  Bookkeeping  and  Warrants,  except  that  balances  found 
and  accounts  stated  as  aforesaid  by  the  Auditor  for  the 
Post-Office  Department  for  postal  revenues  and  expendi- 
tures therefrom  shall  be  certified  to  the  Postmaster- General. 
Sec.  8,  ibid. 

mt?tceSninlm£     143«  Any  person  accepting  payment  under  a  settlement 

tor  settlement  ^y  an  Auditor  shall  be  thereby  precluded  from  obtaining  a 

revision  of  such  settlement  as  to  any  items  upon  which  pay- 

J  This  paragraph  expressly  repeals  section  1  of  the  act  of  March  30,  1808  (sec.  191, 
Rev.  Stat.).  The  clause  "shall  be  conclusive  upon  the  Executive  Departments  of 
the  Government,"  which  formed  a  part  of  the  repealed  section,  was  enacted  to  settle 
along-pending  dispute  between  the  accounting  officers  and  the  heads  of  Departments 
as  to  their  respective  powers  over  claims  and  accounts,  and  has  been  interpreted  to 
relate  "only  to  matters  of  accounting  in  the  Treasury  Department,  and  of  ascertain- 
ing the  balance,  in  each  particular  account  which  shall  be  drawn  from  the  Treas- 
ury- *  *  *  It  makes  conclusive  upon  the  Executive  Branch  of  the  Government 
only  the  'balances'  stated  by  the  accounting  officers  and  their  'decision  thereon' 
for  the  purpose  of  determining  for  what  amounts,  if  any,  warrants  may  be  drawn 
on  the  Treasury.  *  *  *  It  does  not  make  such  decisions  conclusive  upon  the 
head  of  a  Dep.ir'tment  in  the  exercise  of  his  discretion  as  to  orders  to  be  issued  to 
his  subordinates  in  such  connections  as  the  one  now  under  consideration."  Billings  v. 
U.  S.,  2:5  C.  CIs.  R.,  166 ;  McKee  v.  United  States,  12  ibid.,  504.  It  was  held  in  the  case 
of  Surgeon  Billings  (23  C.  CIs.  R.,  166)  that  the  War  Department  had  authority  to 
send  a  surgeon  to  the  International  Medical  Congress,  at  London,  at  the  expense  of 
the  Government,  that  being  a  military  service  which  a  surgeon  could  be  required  to 
render.  In  the  case  of  Paymaster  Smith  (24  C.  CIs.  R.,  209),  it  was  held  that  the 
employment  of  experts  before  a  court-martial  was  within  the  legal  and  proper  dis- 
cretion of  tho  Secretary  of  War.  In  the  case  of  The  United  States  v.  Jones  (18  How., 
92,  95)  the  court  held  "that  the  Secretary  of  the  Navy  represents  the  President,  and 
exercises  his  power  on  the  subjects  confided  to  his  Department.  He  is  responsible 
to  the  people  and  to  the  law  for  any  abuse  of  the  powers  intrusted  to  him.  His  acts 
and  decisions  on  subjects  submitted  to  his  jurisdiction  and  control  by  the  Constitu- 
tion and  laws  do  not  require  the  approval  of  any  officer  of  any  other  Department  to 
make  them  valid  and  conclusive.  The  accounting  officers  of  the  Treasury  have  not 
the  burden  cast  upon  them  of  reviewing  the  judgments,  correcting  the  supposed  mis- 
takes, or  annulling  the  orders  of  the  heads  of  Departments."  See,  also,  U.  S.  v. 
McDaniel.7  Pet.,1,  14;  U.S.  v.  Eliason,  16  Pet.,  291;  Brown  v.  U.  S.,  313  U.S.,  568,571; 
Edwards  v.  Darby,  12  Wheat,,  206;  U.  S.  v.  Pugh,  99  U.  S.,  265;  Parkhurst  v.  U.  S., 
29  C.  CIs.  R..  399. 

When  the  Government  is  estopped  from  further  controverting  a  question  adjudi- 
cated by  a  court  of  competent  jurisdiction  it  is  the  duty  of  the  accounting  officers 
to  follow  the  decision  in  subseauent  settlements  of  tho  parties'  accounts.  The  legis- 
lation of  Congress  and  the  decisions  of  the  Supreme  Court  unmistakably  indicate 
that  judgments  of  this  court,  not  appealed  from,  are  obligatory  upon  the  Govern- 
ment as  upon  the  claimant,  and  are  intended  to  be  guides  and  precedents  for  the 
Executive  Departments.  Meigs  v.  U.  S.,  20  C.  CIs.  R.,  181 ;  U.  S.  v.  O'Grady,  22  Wall., 
641. 

Administrative  discretion  in  expenditures.— Ordinarily,  where  discretionary  power 


THE    MILITARY    LAWS    OF    THE    UN  /TED    STATES.  63 

nient  is  accepted;  but  nothing  in  this  act  shall  prevent  an 
Auditor  from  suspending  items  in  an  account  in  order  to 
obtain  farther  evidence  or  explanations  necessary  to  their 
settlement.  When  suspended  items  are  finally  settled  a 
revision  may  be  had  as  in  the  case  of  the  original  settlement. 
Action  upon  any  account  or  business  shall  not  be  delayed 
awaiting  applications  for  revision:1  Provided,  That  the 
Secretary  of  the  Treasury  shall  make  regulations  fixing 
the  time  which  shall  expire  before  a  warrant  is  issued  in 
payment  of  an  account  certified  as  provided  in  sections 
seven  and  eight  of  this  act.  Sec.  8,  ibid. 

144.  The  Auditors  shall,  under  the  direction  of  the  Cornp- 
troller  of  the  Treasury,  preserve  with  their  vouchers  and 
certificates,  all  accounts  which  have  been  finally  adjusted. 
Sec.  8,  ibid. 

145.  All  decisions  by  Auditors  making  an  original  con- 
struction  or  modifying  an  existing  construction  of  statutes  examined,   etc., 
shall  be  forthwith  reported  to  the  Comptroller  of  the  Treas-    sec.  s,  iud. 
ury,  and  items  in  any  account  affected  by  such  decisions 

shall  be  suspended  and  payment  thereof  withheld  until  the 
Comptroller  of  the  Treasury  shall  approve,  disapprove,  or 
modify  such  decisions  and  certify  his  actions  to  the  Auditor. 
All  decisions  made  by  the  Comptroller  of  the  Treasury 
under  this  act  shall  be  forthwith  transmitted  to  the  Audi- 
tor or  Auditors  whose  duties  are  affected  thereby.1  Sec.  8, 
ibid. 

is  lodged  iu  a  judicial  officer,  bis  decision  is  not  reviewable  save  by  tbo  court  of 
which  he  is  a  member,  and  then  oiily  when  there  has  been  a  clear  abuse  of  the  dis- 
cretion committed  to  him.  Far  more  cogent  reasons  exist  why  this  rule  should  bo 
applied  to  administrative  officers,  who  are  empowered  to  use  their  discretion  as  to 
the  manner  in  which  public  moneys  shall  bo  expended,  for  great  embarrassment  and 
confusion  might  result  if  officers  in  one  Executive  Department  could  sit  in  judg- 
ment upon  the  decisions  of  the  officers  of  another  Executive  Department  in  cases  in- 
volving the  exercise  of  judgment  and  discretion.  3  Dig.  Compt.  Dec.,  21.  Wherever 
the  exercise  of  discretion  by  the  War  Department  in  disbursing  moneys  appropri- 
ated for  the  support  of  the  Army  is  permitted  by  a  statute,  the  manner  in  which 
such  discretion  has  been  exercised  is  a  matter  of  administration  with  which  the 
accounting  officers  have  no  concern.  It  is  the  province  of  the  military  authorities 
to  determine  the  needs  of  a  given  military  depot  or  post  and  the  quantity  of  a  speci- 
fied article  to  be  allotted  to  said  depot  or  post,  while  it  is  the  province  of  the  ac- 
counting officers  to  determine  whether  or  not  Congress  has  made  an  appropriation 
covering  a  specific  expenditure,  or  whether  or  not  such  expenditure  was  made  in 
conformity  with  law.  Ibid..  21.  The  degree  of  wisdom  displayed  in  the  exercise  of 
the  discretion  given  an  officer  of  the  Army,  under  the  authority  of  the  Secretary  of 
War,  is  not  a  subject  for  review  by  the  accounting  officers.  If  the  officer  is  responsi- 
ble for  his  action  in  the  premises  to  any  one,  it  is  to  the  source  from  which  he  derived 
his  authority.  Ibid.,  22. 

The  evidence  required  by  the  War  Department  from  the  disbursing  officers  and 
agents  of  the  Army  for  administrative  purposes  is  a  matter  peculiarly  within  the 
jurisdiction  of  the  Secretary  of  War.  Ibid.,  497. 

1  Under  the  act  of  July  31 , 1894,  the  Auditors  of  the  Treasury  are  not  authorized  to 
render  decisions  in  advance  of  the  settlement  of  accounts,' such  authority  being, 
by  section  8  of  said  act,  granted  only  to  the  Comptroller  of  the  Treasury.  (1  Compt. 
Dec.,  94.) 

Under  section  8  of  the  act  of  July  31,  1894,  an  appeal  will  not  lie  to  the  Comptroller 
of  the  Treasury  except  from  the  final  certificate  of  an  Auditor.  A  suspension  of 
action  upon  a  case  by  an  Auditor  is  not  a  final  decision  of  such  officer.  Ibid.,  381. 
An  appeal  to  the  Comptroller  from  the  action  of  an  Auditor  will  not  lie  until  the 
Auditor  has  taken  final  action  in  the  case.  A  suspension  for  further  evidence  is  not 
a  final  decision  upon  which  an  appeal  can  be  based.  (Ibid.,  448, 500.) 

Under  the  act  of  July  31,  1894,  an  Auditor  has  no  jurisdiction  to  review  his  own 
final  action  in^the  settlement  of  an  account,  but  such  settlement  can  be  reopened 
only  on  a  revision  thereof  by  the  Comptroller  of  the  Treasury  within  a  year,  as 
provided  in  suction  8  of  said  act.  (Ibid.,  27.) 


64  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Requisitions     i4gt  Every  requisition  for  an  advance  of  money  ]  before 

for   advances  of 

fusec'n  ibid  keing  ac^e(i  on  by  the  Secretary  of  the  Treasury,  shall  be 
sent  to  the  proper  Auditor  for  action  thereon  as  required 
by  section  twelve  of  this  act. 

warrants.  All  warrants,  when  authorized  by  law  and  signed  by  the 
Secretary  of  the  Treasury,  shall  be  countersigned  by  the 
Comptroller  of  the  Treasury,  and  all  warrants  for  the  pay- 
ment of  money  shall  be  accompanied  either  by  the  Audi- 
tor's certificate,  mentioned  in  section  seven  of  this  act,  or  by 
the  requisition  for  advance  of  money,  which  certificate  or 
requisition  shall  specify  the  particular  appropriation  to 
which  the  same  should  be  charged,  instead  of  being  speci- 
fied on  the  warrant,  as  now  provided  by  section  thirty -six 
hundred  and  seventy  five  of  the  Revised  Statutes;  and 
shall  also  go  with  the  warrant  to  the  Treasurer,  who  shall 
return  the  certificate  or  requisition  to  the  proper  Auditor, 
with  the  date  and  amount  of  the  draft  issued  indorsed 
thereon.  Requisitions  for  the  payment  of  money  on  all  aud- 
ited accounts,  or  for  covering  money  into  the  Treasury,  shall 
not  hereafter  be  required.  And  requisitions  for  advances 
of  money  shall  not  be  countersigned  by  the  Comptroller  of 
the  Treasury.  Sec.  11,  ibid. 

14?.  Tne  Division  of  Warrants,  Estimates,  and  Appro- 
priations  in  the  office  of  the  Secretary  of  the  Treasury  is 
hereby  recognized  and  established  as  the  Division  of  Book- 
keeping and  Warrants.  It  shall  be  under  the  direction  of 
the  Secretary  of  the  Treasury  as  heretofore.  Upon  the 
books  of  this  division  shall  be  kept  all  accounts  of  receipts 
and  expenditures  of  public  money  except  those  relating 
to  the  postal  revenues  and  expenditures  therefrom;  and 
sections  three  hundred  and  thirteen  and  so  much  of  sec- 
tions two  hundred  and  eighty-three  and  thirty-six  hundred 
and  eighty-five  of  the  Eevised  Statutes  as  require  those 
accounts  to  be  kept  by  certain  Auditors  and  the  Register  of 
the  Treasury  are  repealed.  The  duties  of  the  Register  of 
the  Treasury  shall  be  such  as  are  now  required  of  him  in 
connection  with  the  public  debt  and  such  further  duties  as 
may  be  prescribed  by  the  Secretary  of  the  Treasury.  Sec. 
10,  ibid. 

nea^rev  atroyr°ef  148'  The  Secretary  of  the  Treasury  shall,  on  the  first 
•^onc^av  °^  Januai>y  i'1  each  year,  make  report  to  Congress 
of  such  officers  as  are  then  delinquent  in  the  rendering  their 
accounts  or  in  the  payment  of  balances  found  due  from  them 
for  the  last  preceding  fiscal  year.  Sec.  12,  ibid. 

•Section  8  of  the  act  of  July  31,  1894,  lias  no  application  to  questions  respecting 
the  advance  of  funds  which,  under  this  section,  are  subject  to  the  decision  of  the 
Auditor,  with  a  review  by  the  Secretary  of  the  Treasury.  1  Compt  Dec.  409, 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.       65 

149.  In  the  case  of  claims  presented  to  an  Auditor  which    Examination 

of  certain  claims. 

have  not  had  an  administrative  examination,  the  Auditor    sec.H.i&id. 
shall  cause  them  to  be  examined  by  two  of  his  subordinates 
independently  of  each  other.     Sec.  14,  ibid. 

150.  The  transcripts  from  the  books  and  proceedings  of    certification  of 

.  Treasury  rec- 

tlie  Department  of  the  Treasury,  and  the  copies  of  bonds,  ords,  etc. 

.  -,     -,     „       .  , .  .    ,          Sec.  886,  R.  S. 

contracts,  and  other  papers,  provided  for  in  section  eight    sec.i7,i&tw. 
hundred  and  eighty-six  of  the  Revised  Statutes,  shall  here-  i895,°v,  88,pfw». 
after  be  certified  by  the  Secretary  or  an  Assistant  Secre- 
tary of  the  Treasury  under  the  seal  of  the  Department. 
Sec.  17j  ibid.)  as  amended  by  Sec.  10,  act  of  March  2,  1S95 
(28  Stat.  L.,  809). 

151.  All  accounts  stated  by  the  Auditors  before  the  first    Revision  of  ac- 

counts     pending 

day  of  October,  eighteen  hundred  and  ninety-four,  and  then  on  Oct.  i,  134. 
pending  for  settlement  in  the  offices  of  the  First  or  Second 
Comptroller,  or  the  Commissioner  of  Customs,  shall  be 
revised  by  the  Comptroller  of  the  Treasury  in  the  manner 
provided  by  existing  law,  and  the  balances  arising  thereon 
shall  be  certified  to  the  Division  of  Bookkeeping  and  War- 
rants. Sec.  21,  ibid. 

152.  It  shall  be  the  duty  of  the  Secretary  of  the  Treas-  Tr|carseu?ryt°o 
ury  to  make  appropriate  rules  and  regulations  for  carrying  make  rules  for 

&  new  methods  of 

out  the  provisions  of  this  act,  and  for  transferring  or  pre-  accounting,  etc. 
serving  books,  papers,  or  other  property  appertaining  to 
any  office  or  branch  of  business  affected  by  it.     Sec.  22, 
ibid. 

153.  It  shall  also  be  the  duty  of  the  heads  of  the  several  _Bn,les',?tCM  1)y 

Heads  of  Depart- 

Lxecutive  Departments  and  of  the  proper  officers  of  other  ments,  etc. 
Government  establishments,  not  within  the  jurisdiction  of 
any  Executive  Department,  to  make  appropriate  rules  and 
regulations  to  secure  a  proper  administrative  examination 
of  all  accounts  sent  to  them,  as  required  by  section  twelve 
of  this  act,  before  the  transmission  to  the  Auditors,  and 
for  the  execution  of  other  requirements  of  this  act  in  so 
fas  as  the  same  relate  to  the  several  Departments  or  estab- 
lishments. Sec.  22.  ibid. 

154.  This  act,  so  far  as  it  relates  to  the  First  Comptroller    Comptroller, 
of  the  Treasury  and  the  several  Auditors   and  Deputy 

Aditors  of  the  Treasury,  shall  be  held  and  construed  to 
operate  merely  as  changing  and  their  designations  and 
adding  to  and  modifying  their  duties  and  powers,  and  not 
as  creating  new  officers.  Sec.  9,  ibid. 

155.  All  laws  not  inconsistent  with  this  act,  relating  to    Transfer  of 
the  Auditors  of  the  Treasury  in  connection  with  any  mat-  tore!* 

ter  shall  be  understood  in  each  case  to  relate  to  the  Audi-    Sec-Q'im- 
tor  to  whom  this  act  assigns  the  business  of  the  Executive 
Department  or  other   establishments   concerned  in   that 
matter.     Sec.  9,  ibid. 
1919 5 


66  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

settled  claims     156.  Nothing  in  this  act  shall  be  construed  to  authorize 

not  reopened  .  . 

Sec.  23,  iMd.  the  reexamination  and  payment  of  any  claim  or  account 
which  has  heretofore  been  disallowed  or  settled.  Sec.  23, 
ibid. 

New  account-     ^57    rp^e  provisions  of  sections  three  to  twenty-three 

ing  system   in  , 

force  October  i,  inclusive  of  this  act  shall  be  in  force  on  and  after  the  nrst 
Sec.  24,  t&tez.     day  of  October,  eighteen  hundred  and  ninety-four.1     Sec. 

24,  ibid. 

Duties  of  Audi-      158.  The  Auditors  charged  with  the  examination  of  the 
0  Depart  -accounts  of  th  e  Departments  of  War  and  of  the  Navy, 


MaJ:  3,  1817,  c.  shall  keep  all  accounts  of  the  receipts  and  expenditures  of 
367SS'5'6'v'3'p'the  public  money  in  regard  to  those  Departments,  and  of 

sec.  283,  B.  s.  all  debts  due  to  the  United  States  on  moneys  advanced 
relative  to  those  Departments;  shall  receive  from  the 
•  Comptroller  the  accounts  which  shall  have  been  finally 
adjusted,  and  shall  preserve  such  accounts,  with  their 
vouchers  and  certificates,  and  record  all  requisitions 
drawn  by  the  Secretaries  of  those  Departments,  the  exam- 
ination of  the  accounts  of  which  has  been  assigned  to  them. 
They  shall  annually,  on  the  first  Monday  in  November, 
severally  report  to  the  Secretary  of  the  Treasury  the  appli- 
cation of  the  money  appropriated  for  the  Department  of 
War  and  the  Department  of  the  Navy,  and  they  shall  make 
such  reports  on  the  business  assigned  to  them  as  the  Sec- 
retaries of  those  Departments  may  deem  necessary  and 
require. 


aocto1unets  of     *^.  The   Second  Auditor   shall  audit   and   settle   the 
arE<°ffi29eri867  accounts  of  line  officers  of  the  Army,  to  the  extent  of  the 
Res.'  NO.  22,  v.  is',  pay  (jue  them  for  their  services  as  such,  notwithstanding 
P'sec  278  R  s  tlie  inability  of  any  such  line  officer  to  account  for  property 
intrusted  to  his  possession,  or  to  make  his  monthly  reports 
or  returns,  if  such  Auditor  shall  be  satisfied  by  the  affi- 
davit of  the  officer  or  otherwise  that  the  inability  was 
caused  by  the  officer's  having  been  a  prisoner  in  the  hands 
of  the  enemy,  or  by  any  accident  or  casualty  of  war.2 
160f  ^W  monevs  Paid  ^7  a  paymaster  in  the  Army  to 


ties  paid  by  pay-  au  enlisted  man  as  an  advance  bounty  shall  be  allowed  in 
the  settlement  of  the  accounts  of  the  paymaster,  notwith- 


1  For  section  3  of  the  act  of  July  31,  1894,  see  paragraph  138;  for  section  4  of  tlie 
"or  section  5  see  paragraph  135;  for  section  6  see 
ragraph  139;  for  section  8  see  paragraphs  136, 141, 


same  statute  see  paragraph  134;  for  section  5  see  paragraph  135;  for  section  6  see 
paragraph  137 ;  for  section  7  see  paragraph  139;  for  section  8  see  paragraphs  136, 141 
142, 143, 144,  and  145 ;  for  section  9  see  paragraphs  154  and  155 ;  for  section  10  see  para 


132  and 
section 

21  see  paragraph  151 ;  lor  section  22  see  paragraphs  152  and  153;  for  section  23  see 
paragraph  156.  Section  13  relates  to  the  accounts  of  certain  subordinate  officers  of 
the  Department  of  Justice;  section  15  to  an  annual  report  of  expenditures  to  be  ren- 
dered to  Congress  by  the  Secretary  of  the  Treasury;  sections  16,  18,  and  19  amend 
sections  307, 2639,  and  3743  of  the  Revised  Statutes;  section  20  relates  to  the  duties 
of  collectors  of  customs. 

2 The  ditties  of  the  Second  Auditor  of  the  Treasury  were,  by  section  7  of  the  act 
of  July  31,  1894  (28  Stat.  L.,  206),  devolved  on  the  Auditor  of  the  Treasury  for  the 
War  Department. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  67 

standing  the  discharge  of  such  enlisted  man  before  serving  78M8arg  \18^'  c- 
the  time  required  by  law  to  entitle  him  to  payment  of  such 


moneys.  s...  28«,  B.  S. 

161.  The  proper  accounting  officers  are  authorized,  in  the  o^^mentsb* 
settlement  of  the  accounts  of  the  paymasters  of  the  Army,  I>a£™ra81t6ei188>68 
to  allow  such  credits  for  overpayments  made  in  good  faith29,v.i5,P'.42.  ' 
on  public  account,  since  the  fourteenth  day  of  April,  eight-    Sec.  asi,  B.  s. 
een  hundred  and  sixty  one,  and  before  the  sixteenth  day 

of  March,  eighteen  hundred  and  sixty-eight,  as  shall  appear 
to  them,  by  such  vouchers  and  testimony  as  they  shall 
require,  to  be  just. 

162.  In  all  cases  where  it  has  become  necessary  for  any  .  Evidence  of 

J  honorable      dis- 

officer  or  enlisted  man  of  the  Army  to  file  his  evidence  of  charge  to  be  re- 

turned  to  officers 

honorable  discharge  from  the  military  service  of  the  United  and  enlisted 
States,  to  secure  the  settlement  of  his  accounts,  the  account-  May4,i87o,Res. 

..,          ,  „,     ,      ,      ,  ,  ,.          No.  42,  v.  16,  p. 

mg  officer  with  whom  it  has  been  filed  shall,  upon  applica-  374. 

tion  by  said  officer  or  enlisted  man,  deliver  to  him  such    sec.  282,  B.  s. 

evidence  of  honorable  discharge  ;  but  his  accounts  shall 

first  be  duly  settled,  and  the  fact,  date,  and  amount  of 

such  settlement  shall  be  clearly  written  across  the  face  of 

such  evidence  of  honorable  discharge,  and  attested  by  the 

signature  of  the  accounting  officer  before  it  is  delivered. 

163.  Whenever  the  disbursing  officer,  or  agent  by  w^omlo^^J°e  of 
was  issued  any  check  which  has  been  lost,  destroyed,  or    Feb.  2,  im,  c. 
stolen,  is  dead,  or  no  longer  in  the  service  of  the  United  p.  29. 
Stales,  the  proper  accounting  officer  shall,  under  such  regu-    sec.  300,  B.  s. 
latious  as  the  Secretary  of  the  Treasury  may  prescribe, 

state  an  account  in  favor  of  the  owner  of  such  original 
check  for  the  amount  thereof,  and  charge  such  amount  to 
the  account  of  such  officer  or  agent.1 

164.  All  claims  of  loyal  citizens  in  States  not  in  rebel-    claims    for 
lion,  for  quartermaster's  stores  actually  furnished  to  the  Slermaster'8 
Army  of  the  United  States,  and  receipted  for  by  the  proper  jgfp^Jf;  1875>  v' 
officer  receiving  the  same,  or  which  may  have  been  taken    Sec  800A  B  g 
by  such  officers  without  giving  such  receipt,  may  be  sub- 

mitted to  the  Quartermaster-General  of  the  United  States, 
accompanied  with  such  proofs  as  each  claimant  can  present 
of  the  facts  in  his  case;  and  it  shall  be  the  duty  of  the 
Quartermaster-General  to  cause  such  claim  to  be  examined, 
and  if  convinced  that  it  is  just,  and  of  the  loyalty  of  the 
claimant,  and  that  the  stores  have  been  actually  received, 
or  taken  for  the  use  of,  and  used  by  the  Army,  then  to 
report  each  case  to  the  Third  Auditor  of  the  Treasury,  with 
a  recommendation  for  settlement.2 

•See  also  section  3646,  Eevised  Statutes,  as  amended  by  the  act  of  February  16, 
1885  (23  Stat.  L.,  306),  paragraph  515,  post. 
'Section  2  of  the  act  of  Juno  16,  1874  (18  Stat  L.,  75),  contained  a  provision  that  the 


68 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


sc  BOOB  B  s 


claims  for  sub-     iQ$   All  claims  of  loyal  citizens  in  States  not  in  rebel- 

S38t6nCC. 

igFeb^ is,  1875,  v.  }jon  for  subsistence  actually  furnished  to  the  Army  and 
receipted  for  by  the  proper  officer  receiving  the  same,  or 
which  may  have  been  taken  by  such  officers  without  giviug 
such  receipt,  may  be  submitted  to- the  Commissary-General 
of  Subsistence,  accompanied  by  such  proof  as  each  claim- 
ant may  have  to  oifer ;  and  it  shall  be  the  duty  of  the  Com- 
missary-General of  Subsistence  to  cause  each  claim  to  be 
examined,  and  if  convinced  that  it  is  just,  and  of  the  loyalty 
of  the  claimant,  and  that  the  stores  have  actually  been  re 
ceived,  or  taken  for  the  use  of,  and  used  by  the  Army,  then 
to  report  each  case  for  payment  to  the  Third  Auditor  of  the 
Treasury  with  a  recommendation  for  settlement. 

The  provisions  of  the  above  two  sections  shall  extend  to 
the  State  of  Tennessee,  and  to  the  counties  of  Berkeley 
and  Jefferson  in  the  State  of  West  Virginia.  But  the  pro- 
visions of  the  above  two  sections  shall  not  authorize  the 
payment  of  claims  for  the  occupation  of,  or  injury  to,  real 
estate  in  any  State  declared  in  insurrection  during  the 
rebellion.1  Act  of  February  18,  1875  (18  Stat.  L.,  316). 


ESTIMATES   AND   APPROPRIATIONS. 


Par. 

166.  Manner  of  communicating  es- 

timates. 

167.  Estimates   for  printing   and 

binding. 

168.  Estimates  for  salaries. 

169.  Estimates  for  public  works. 

170.  Additional   explanations  re- 

quired. 

171.  Amount  of  outstanding  ap- 

propriations  to   be    desig- 
nated. 

172.  Estimates  to  be  submitted  to 

Congress, 

173.  Statements  to  accompany  es- 

timates. 

174.  Statement  of  proceeds  of  sales 

of  old  material. 


Par. 

175.  Requisitions    for    War    and 

Navy  Departments. 

176.  Application  of  moneys  appro- 

priated. 

177.  No  expenditures  beyond  ap- 

propriations. 

178.  Expenses  of  commissions  and 

inquiries. 

179.  Restrictions    on   contingent, 

etc.,  appropriations. 

180.  Permanent  appropriations. 

181.  Application  of   balances    of 

appropriations. 

182.  Disposal  of  balances  after  two 

years. 

183.  Proceeds    of     certain    sales, 

etc.,  of  material. 


Quartermaster-General  and  the  Commissary-General  of  Subsistence  should  continue 
to  act  upon  claims  under  the  act  of  July  4,*186i,  and  to  report  the  same  to  the  Secre- 
tary of  the  Treasury  for  submission  to  Congress.  The  jurisdiction  thus  conferred 
was  finally  withdrawn  by  the  act  of  March  3,  1883,  which  contained  the  following 
provision:  "That  hereafter  no  part  of  the  sums  appropriated  for  the  Subsistence 
and  Quartermaster's  Departments  of  the  Army  shall  be  used  or  expended  in  the 
investigation  of  claims  under  the  act  of  July  fourth,  eighteen  hundred  and  sixty- 
four,  entitled  'An  act  to  restrict  the  jurisdiction  of  the  Court  of  Claims,  and  to  pro- 
vide for  the  payment  of  certain  demands  for  quartermaster's  stores  and  subsistence 
supplies  furnished  to  the  Army  of  the  United  States, '  and  acts  and  resolutions 
amendatory  thereof  and  supplementary  thereto."  (Act  of  March  3, 1883,  22  Stat.  L., 
457.)  See  also  the  Bowman  Act,  paragraphs  332  to  338,  pott. 

1For  statutory  provisions  respecting  the  withdrawal  of  the  jurisdiction  conferred 
by  this  section  see  note  2  to  paragraph  164,  ante. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  69 


166.  The  heads  of  Departments,  in  communicating  esti- 

mumcating  esti- 

mates of  expenditures  and  appropriations  to  Congress,  or  to  mates.  ^ 
any  of  the  committees  thereof,  shall  specify,  as  nearly  as  202,  8.  14,  V.  5,'P.' 

J     _  .  '  i  •    -u  u  525;  Mar.  a,  1875, 

may  be  convenient,  the  sources  from  which  such  estimates  c.  129,  8.  3,v.  is,  P. 

are  derived,  and  the  calculations  upon  which  they  are' 

founded,  and  shall  discriminate  between  such  estimates  as    lsec-3660'B-s- 

are  conjectural  in  their  character  and  such  as  are  framed 

upon  actual  information  and  applications  from  disbursing 

officers.    They  shall  also  give  references  to  any  law  or 

treaty  by  which  the  proposed  expenditures  are,  respec- 

tively, authorized,  specifying  the  date  of  each,  and  the  vol- 

ume and  page  of  the  Statutes  at  Large,  or  of  the  Kevised 

Statutes,  as  the  case  may  be,  and  the  section  of  the  act  in 

which  the  authority  is  to  be  found.1     Sec.  3660,  R.  8. 

167.  The  head  of  each  of  the  Executive  Departments,    Estimates  for 
and  every  other  public  officer  who  is  authorized  to  have  binding.11  g 
printing  and  binding  done  at  the  Congressional  Printing  140,  ^2,  V.  17,'  p! 
Office  for  the  use  of  his  Department  or  public  office,  shall 

SPI*    *tflP1    1?    tt 

include  in  his  annual  estimate  for  appropriations  for  the 
next  fiscal  year  such  sum  or  sums  as  may  to  him  seem  nec- 
essary "for  printing  and  binding,  to  be  executed  under  the 
direction  of  the  Congressional  Printer." 

168.  All  estimates  for  the  compensation  of  officers  author-    Estimates  for 

ized  by  law  to  be  employed  shall  be  founded  upon  the    Mar.  3,  1355,  c. 

.  .  ,.  ,  Iv     M:      ^175'  s<  8)  v-  10'  p- 

express  provisions  of  law,  and  not  upon  the  authority  of  6?o. 

executive  distribution.2  sec.8662,B.s. 

169.  Whenever  any  estimate  submitted  to  Congress  by    Estimates  for 

J  J  public  works. 

the  head  of  a  Department  asks  an  appropriation  for  any    Junen,  isu,  c. 
new  specific  expenditure,  such  as  the  erection  of  a  public  693';  Mar.  a,  isss, 
building,  or  the  construction  of  any  public  work,  requiring  670  ;FeV27,i877,' 
a  plan  before  the  building  or  work  can  be  properly  com-  v'19'p'249' 
pleted,  such  estimate  shall  be  accompanied  by  full  plans    Sec-8663>R-s- 

1  The  policy  of  Congress  in  respect  to  annual  appropriations  is  contained  in  sec- 
tions 3660,  3664,  3665,  3675,  3678,  3679,  and  3690  of  the  Revised  Statutes.     A  reading  of 
their  provisions  will  show  conclusively,  we  think,  that.  Congress  has  restricted  in 
every  possible  way  the  expenditures  and  expenses  and  liabilities  of  the  Government, 
so  far  as  executive  officers  are  concerned,  to  the  specific  appropriations  of  each  fiscal 
year.     Wilder  v.  U.  S.,  16  C.  Cls.  R.,  528,  543.     The  estimates  must  relate  to  expendi- 
tures based  upon  the  enactments  of  Congress  and  not  to  tho  payment  of  damages. 
Pitman  v.  U.  S.,  20  ibid.,  253,  256.    And  to  expenditures  for  the  public  service  during 
the  ensuing  fiscal  year.    McCallum  v.  United  States,  17  ibid.,  92;  Conn.  Mut.  Life 
Ins.  Co.  v.  U.  S.,  21  ibid.,  195,  200. 

2  A  statute  which  fixes  the  annual  salary  of  a  public  officer  at  a  designated  sum, 
without  limitation  as  to  time,  is  not  abrogated  by  subsequent  enactments  appropri- 
ating a  less  amount  for  his  services  for  'a  particular  fiscal  year,  but  containing  no 
words  which  expressly  or  impliedly  repeal  it.    U.  S.  v.  Langston,  118  U.  S.,  389.    It 
is  otherwise,  however,  when  the  sum  appropriated  is  "in  full  compensation"  for 
the  salary  of  a  particular  officer,  in  which  case  the  earlier  act  is  suspended  for  the 
time  covered  by  the  appropriation.    TL  S.  v.  Fisher,  109  U.  S.,  143  ;  U.  S.  v.  Mitchell, 
ibid.,  146.    A  salary  that  is  established  by  statute  can  not  be  increased  nor  dimin- 
ished by  executive  officers.    It  is  not  a  subject  of  contract  between  such  officers. 
The  incumbent  of  an  office  is  entitled  to  the  salary  attached  thereto  by  law,  and,  if 
he  receives  a  less  sum  from  disbursing  officers,  he  can  claim  and  receive  the  balance. 
Dyerr.  U.  S.,  20  C.  Cls.  R.,  166,  171;  Adamsv.  U.  S.,  ibid.,  115.  Such  recovery  may  be  had 
though,  by  the  terms  of  his  appointment,  he  was  to  receive  less  and  though  he  mav 
nave  been  compelled  to  execute  a  receipt  in  full  therefor.    Ibid. 


70  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

and  detailed  estimates  of  the  cost  of  the  whole  work.  All 
subsequent  estimates  for  any  such  work  shall  state  the 
original  estimated  cost,  the  aggregate  amount  theretofore 
appropriated  for  the  same,  and  the  amount  actually 
expended  thereupon,  as  well  as  the  amount  asked  for  the 
current  year  for  which  such  estimate  is  made.  And  if  the 
amount  asked  is  in  excess  of  the  original  estimate,  the  full 
reasons  for  the  excess  and  the  extent  of  the  anticipated 
excess  shall  be  also  stated.  (See  sec.  3734,  R.  S.) 
re"-  ^^  Whenever  the  head  of  a  Department,  being  about 
to  submit  to  Congress  the  annual  estimates  of  expenditures 
sec  8664  B  s  re(lllire(l  *or  ^ne  coming  year,  finds  that  the  usual  items  of 
such  estimates  vary  materially  in  amount  from  the  appro- 
priation ordinarily  asked  for  the  object  named,  and  espe- 
cially from  the  appropriation  granted  for  the  same  objects 
for  the  preceding  year,  and  whenever  new  items  not  there- 
tofore usual  are  introduced  into  such  estimates  for  any 
year,  he  shall  accompany  the  estimates  by  minute  and  full 
explanations  of  all  such  variations  and  new  items,  showing 
the  reasons  and  grounds  upon  which  the  amounts  are 
required,  and  the  different  items  added. 

Btand?™*?0^     1^§  ^ne  nea(l  °f  eacn  Department,  in  submitting  to 

priationa  to  be  Congress  his  estimates  of  expenditures  required  in  his 

82June2^i858,  c.  Department  during  the  year  then  approaching,  shall  desig- 

308.  nate  not  only  the  amount  required  to  be  appropriated  for 

Sec.3665,n.s.  the  next  fiscal  year,  but  also  the  amount  of  the  outstand- 

ing appropriation,  if  there  be  any,  which  will  probably  be 

required  for  each  particular  item  of  expenditure. 

suEbSm?ftedtoto  172.  All  annual  estimates  for  the  public  service  shall  be 
C°se|rte?'i789  c  submitted  to  Congress  through  the  Secretary  of  the  Treas- 
Mar\oT8obpc58;ury?  au(1  sna11  be  iuclucled  in  tne  Book  of  Estimates  pre- 
jan17Pi846^Rt8;  Pare(l  under  his  direction. 

2,  v.  9.  'p.  108  ;  Aug.  4,  1854,  c.  242,  s.  15,  v.  10,  p.  573  ;  May  18,  1865,  c.  85,  s.  4,  v.  14,  p.  49  ;  June 
20,  1874,  c.  328,  v.  18,  pp.  96,  109,  111  ;  Mar.  3,  1875,  c.  129,  v.  18,  pp.  355,  370  ;  Aug.  15,  1876,  c. 
289,  s.  4,  v.  p.  200.  Sec.  3669,  R.  S. 

statements  to     173,  The  Secretary  of  the  Treasury  shall  annex  to  the 

accompany    esti- 

mat«8.  ^  ^^^  ^  annual  estimates  of  the  appropriations  required  for  the  pub- 
52,  s.  8,  v.  3,  p.  568;  lie  service,  a  statement  of  the  appropriations  for  the  service 

Juno  20,  1874,  c. 

328,  v.  is,  p.  96.     of  the  year,  which  may  have  been  made  by  former  acts. 


174.  A  detailed  statement  of  the  proceeds  of  all  sales  of 
proceeds  of  sales  old  material,  condemned  stores,  supplies,  or  other  public 

of  old  material. 

May  s,  1872,  c.  property  of  any  kind  except  materials,  stores,  or  supplies 
83;  'Feb.'  27,  1877^  sold  to  officers  and  soldiers  of  the  Army,  or  to  exploring  or 

c.69,v.!9,  p.  249.  .  .... 

surveying  expeditions  authorized  by  law  shall  be  included 
*  in  the  appendix  to  the  Book  of  Estimates. 


175.  All  moneys  appropriated  for  the  use  of  the  War  and 
Depart"  Navy  Departments  shall  be  drawn  from  the  Treasury,  by 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  71 

warrants  of  the  Secretary  of  the  Treasury,  upon  the  requi-  45M8gr-53^  l*l£  c- 
sitions  of  the  Secretaries  of  those  Departments,  respec  ^  May'?, '1822,' 
tively,  countersigned  by  the  Second  Comptroller  of  theeso;  Mar.  1. 18$ 
Treasury,  and  registered  by  the  proper  Auditor.     (See  sees. 
373,  277,  R.  S.) 

176.  All  sums  appropriated  for  the  various  branches  of  Of  moneys  appr*" 
expenditure  in  the  public  service  shall  be  applied  solely  to  P'jJJ^s  1809  c 
the  objects  for  which  they  are  respectively  made,  and  for  ^* 'J^iles  c?8; 
no  others.1  8  2- v- 15>  P-  36- 

177.  No  Department  of  the  Government  shall  expend,  in    No' fxp8en d!' 
anyone-  fiscal  year,  any  sum  in  excess  of  appropriations 

made  by  Congress  for  that  fiscal  year,  or  involve  the  Gov- 
eminent  in  any  contract  for  the  future  payment  of  money251- 
in  excess  of  such  appropriations.2    (See  sees.  3733 ,  5503,   sec.  3679, B. s. 
and  3732,  R.  S}. 

178.  No  accounting  or  disbursing  officer  of  the  Govern-    Expenses  of 

,     _.      _,  commissions  and 

ment  shall  allow  or  pav  anv  account  or  charge  whatever,  inquiries. 

«  .     J  .  Aug.  26,1842,c. 

growing  out  of,  or  in  any  way  connected  with,  any  comnns-  202, 8;  25,  v.  5,  p. 
sion  or  inquiry,  except  courts- martial  or  courts  of  inquiry 
in  the  military  or  naval  service  of  the  United  States,  until 
special  appropriations  shall  have  been  made  by  law  to  pay 
such  accounts  and  charges.  This  section,  however,  shall 
not  extend  to  the  contingent  fund  connected  with  the  for- 
eign intercourse  of  the  Government,  placed  at  the  disposal 
of  the  President. 

179.  No  moneys  appropriated  for  contingent,  incidental,  TOJ5Jri^01J5Jn 
or  miscellaneous  purposes  shall  be  expended  or  paid  for  appropriations. 
official  or  clerical  compensation.  251,  si  3,  v.  i6,'p. 

1  An  appropriation  by  Congress  of  a  given  sum  of  money  for  a  named  purpose  Sec.  3682,  B.  S. 
is  not  the  designation  of  a  specific  fund  lor  that  purpose,  but  simply  a  legal  author- 
ity to  apply  so  much  of  any  money  in  the  Treasury  to  the  indicated  object.  Every 
appropriation  for  the  payment  of  a  particular  demand,  or  a  class  of  demands,  neces- 
sarily involves  and  includes  the  recognition  by  Congress  of  the  legality  and  justice 
of  each  demand  and  is  equivalent  to  an  express  mandate  to  the  Treasury  officers  to 
pay  it.  This  recognition  is  not  af.ected  by  any  previous  adverse  action  of  Congress, 
for  the  last  expression  by  tbat  body  supersedes  all  such  previous  action.  HuKill  v. 
U.  S.,  16  C.  Cls.  R.,  5b2, 585.  When  an  appropriation  has  been  made  by  Congi  ess  for 
a  general  purpose,  contemplating  a  multitude  of  acts  to  be  done  by  the  Department, 
its  agency  is  general  within  those  limits.  Leavitt  v.  U.  S.,  34  F.  R  ,  623.  When  an 
alleged  liability  of  the  Government  rests  wholly  upon  an  appropriation,  they  must 
stand  or  fall  together,  so  that  when  the  latter  is  exhausted  the  former  come's  to  an 
end.  Shipman  v.  U .  S.,  18  C.  Cls.  R.,  138. 

•The  legal  liability  of  the  Government  does  not  generally  depend  upon  appropri- 
ations. The  constitutional  provision,  in  article  1,  section  9,  that  "no  money  shall 
be  drawn  from  the  Treasury  but  in  consequence  of  appropriations  made  by  law,"  is 
a  mere  limitation  ami  restriction  upon  tin  >  executive  officers  of  the  Treasury  Depart- 
ment, and  does  not  prevent  Co7igT'ess,  the  law-making  power,  from  involving  the 
Government  in  contracts  to  pay  money  to  any  extent.  When  such  contracts  are 
made,  the  parties  who  acquire  rights  to  compensation  thereunder  must  wait  until 
an  appropriation  is  made  before  they  can  receive  their  money,  but  the  right  on  their 
part  and  the  obligation  on  the  part  of  the  United  States  remain  unchanged.  Failing 
to  obtain  direct  appropriations  for  their  benefit,  public  creditors  may  sue  in  this 
court  and  thus  obtain  payment  out  of  any  money  appropriated  for  the  payment  and 
satisfaction  of  private  claims.  Mitchell  v.  U.  S.i  18  C.  Cls.  R.,  281,  286.  T"he  except- 
ing clause  in  section  37H2,  Revised  Statutes  (a)  in  relation  to  contracts  for  and  pur- 
chases of  clothing,  subsistence,  forage,  fuel,  quarters,  etc.,  operates  to  withdraw 
such  contracts  and  purchases  from  the  prohibition  contained  in  this  paragraph  in 
relation  to  expenditures  in  excess  of  the  appropriations  for  a  particular  fiscal  year, 
and  such  purchases  may  be  made,  provided  the  necessities  of  thecurrent  fiscal  year  be 
not  exceeded. 

a  See  the  chapter  entitled  CONTRACTS  AND  PURCHASES. 


72 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


PERMANENT  ANNUAL  APPROPRIATIONS. 


July  28,1 866,  c. 
296,  s.  12,  v.  14,  p. 
322;  Apr.22, 1872, 
c.  114,  v.  17,  p.  55. 


Mar.  21, 1866,  c. 
21,  s.  5,  v.  14,  p.  10; 
Jan.  23, 1873,c.51, 
s.l,v.l7,p.417 


ap      igo,  There  are  appropriated,  out  of  any  moneys  in  the 
sec.  3689  R.  s.  Treasury  not  otherwise  appropriated,  for  the  purposes 
hereinafter  specified,  such  sums  as  may  be  necessary  for 
the  same  respectively;  and  such  appropriations  shall  be 
deemed  permanent  annual  appropriations. 


UNDER   THE   WAR   DEPARTMENT. 

Bounty  to  soldiers : 

For  payment  of  bounties  to  soldiers,  or  their  widows  or 
legal  heirs,  under  the  twelfth,  thirteenth,  fourteenth,  fif- 
teenth, and  sixteenth  sections  of  "An  act  making  appro- 
priations for  sundry  civil  expenses  of  the  Government  for 
the  year  ending  June  thirty,  eighteen  hundred  and  sixty- 
seven,  and  for  other  purposes." 

Support  of  National  Asylum  for  Disabled  Volunteer 
Soldiers : 

Of  all  stoppages  or  fines  adjudged  against  volunteer 
officers  and  soldiers  by  sentence  of  court-martial  or  mil- 
itary commission,  over  and  above  the  amount  necessary 
for  the  reimbursement  of  the  Government  or  individuals, 
all  forfeitures  on  account  of  desertion  from  such  service, 
and  all  moneys  due  such  deceased  officers  and  soldiers 
which  are  or  may  be  unclaimed  for  three  years  after  the 
death  of  such  officers  arid  soldiers,  to  be  repaid  upon 
the  demand  of  the  heirs  or  legal  representatives  of  such 
deceased  officers  and  soldiers,  to  be  used  for  the  establish- 
ment and  support  of  the  National  Asylum  for  Disabled 
Volunteer  Soldiers.  (See  sec.  4825  Rev.  Stat.) 
Soldiers7  Home: 

Of  all  stoppages  or  fines  adjudged  against  soldiers  by 
sentence  of  court-martials,  over  and  above  any  amount 
that  may  be  due  for  the  reimbursement  of  Government  or 
of  individuals;  all  forfeitures  on  account  of  desertion;  and 
all  moneys  belonging  to  the  estates  of  deceased  soldiers, 
which  now  are  or  may  hereafter  be  unclaimed  for  the  period 
of  three  years  subsequent  to  the  death  of  said  soldier  or 
soldiers,  to  be  repaid  by  the  commissioners  of  the  institu- 
tion, upon  the  demand  of  the  heirs  or  legal  representatives 
of  the  deceased. 

Horses  and  other  property  lost  in  military  service: 

To  pay  for  horses,  mules,  oxen,  wagons,  carts,  sleighs, 
harness,  steamboats,  and  other  vessels,  railroad-engines 
and  railroad-cars,  killed,  lost,  captured,  destroyed,  or  aban- 


Mar.  3,  1851,  c 
25,  s.  7.  v.  9,  p.  596: 
July  5,  1862,  c 
133,'  s.  2,  v.  12,  p 
508 


Mar.  3,  1849,  c, 
129,  88.  2,  6,  v.  9, 
pp.  415,  416;  Mar. 
3,  1863,  c.  78,  s.  5, 
v.  12,  p.  743  . 


1  Permanent  appropriations  are  those  made  for  an  unlimited  period;   indefinite 
appropriations  are  those  in  which  no  amount  is  named.    13  Opin.  Att.  Gen.,  389. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  73 

doned  while  in  the  military  service  under  the  provisions  of 

Title  "DEBTS  DUE   BY   OR   TO   THE   UNITED   STATES." 

Payment  to  certain  military  organization  sin  Kansas:    Apr.  ^ISTI.C. 
To  pay  to  the  members  of  the  military  organization SPP- 641,642. 
known  as  the  Westport  Police  Guards,  Hickinan's  Mills 
Company,  and  Companies  A,  B,  0,  D,  and  E,  of  the  Kan- 
sas City  Station  Guards,  under  private  act  of  April  twelve, 
eighteen  hundred  and  seventy-one,  chapter  twelve,  the  pay 
and  allowances  of  volunteers  in  the  service  of  the  United 
States. 

Traveling  expenses  of  California  and  Nevada  volun- 
teers : 
To  pay  for  the  traveling  expenses  of  such  California  and    Mar.  2,  ise?,  c. 

XT  J  '          1  1        '  XT  TIT  '  l70'   8"   7>    V"    14'  P- 

Nevada  volunteers  as  were  discharged  in  New  Mexico,  487. 
Arizona,  or  Utah,  and  at  points  distant  from  the  place  or 
places  of  enlistment,  such  proportionate  sum.  according  to 
the  distance  traveled,  as  has  been  paid  to  the  troops  of 
other  States  similarly  situated. 

Allowance  for  reduction  of  wages  under  eight-hour 
law: 

Of  such  sum  as  may  be  required  in  the  settlement  of  all  ^May  18^187^2,  c. 
accounts  for  the  services  of  laborers,  workmen,  and  median- 134! 
ics  employed  by  or  on  behalf  of  the  Government,  between 
the  twenty-fifth  day  of  June,  eighteen  hundred  and  sixty- 
eight,  the  date  of  the  act  constituting  eight  hours  a  day's 
work  for  all  such  laborers,  workmen,  and  mechanics,  and 
the  nineteenth  day  of  May,  eighteen  hundred  and  sixty- 
nine,  the  date  of  the  proclamation  of  the  President  con- 
cerning such  pay,  to  settle  and  pay  for  the  same  without 
reduction  on  account  of  reduction  of  hours  of  labor  by 
said  act,  when  it  shall  be  made  to  appear  that  such  was 
the  sole  cause  of  the  reduction  of  wages.  (See  sec.  3738.) 

181.  All   balances  of  appropriations  contained  in  the    Application  of 

T  ...        -I  -ii  -i  i  -o       11      r       n  balances    of  ap- 

annual  appropriation  bills  and  made  specifically  for  the  serv-  propriations. 

July  12,1870,0. 

ice  of  any  fiscal  year,  and  remaining  unexpended  at  the  251, 8. 5,  v.  ie,  p. 
expiration  of  such  fiscal  year,  shall  only  be  applied  to  the20 
payment  of  expenses  properly  incurred  during  that  year,    Sec* 8690' R* s' 
or  to  the  fulfillment  of  contracts  properly  made  within  that 
year;  and  balances  not  needed  for  such  purposes  shall  be 
carried  to  the  surplus  fund.    This  section,  however,  shall 
not  apply  to  appropriations  known  as  permanent  or  indefi- 
nite appropriations. l 

'The  use  of  every  nscal-year  appropriation  is  limited  by  section  3690  of  the 
Kevised  Statutes  and  by  its  own  terms  to  the  payment  of  expenses  properly  incurred 
during  the  fiscal  year  for  which  it  isniade,  or  to  the  fulfillment  of  contracts  properly 
made  within  that  year;  and  balances  not  needed  for  such  purposes  must  be  carried 
to  the  surplus  fund  and  covered  into  the  Treasury  in  conformity  with  the  provisions 
of  seel  ion  5  of  the  act  of  June  20, 1874.  (18  Stat.  L..  110;  3  Dig.  Cornpt.  Dec.,  31.)  The 
use  of  any  part  of  mi  appropriation  made  for  one  fiscal  year  for  the  payment  of  any 
liability  incurred  during  a  succeeding  fiscal  year  is  prohibited,  by  section  3679  as 
well  as  by  section  3690  of  the  Revised  Statutes.  (3  Ibid.,  31.) 


74  THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

Disposal  of  bai-     ig2.  All  balances  of  appropriations  which  shall  have  re- 

ances  after  two 

years.  niained  on  the  books  of  the  Treasury,  without  being  drawn 

Sec.  6,  ibid. 

june2o,  1874,  c.  against  in  the  settlement  of  accounts,  for  two  years  from 
the  date  of  the  last  appropriation  made  by  law,  shall  be 

w<w»    *N"'*41    H    W 

reported  by  the  Secretary  of  the  Treasury  to  the  Auditor 
of  the  Treasury,  whose  duty  it  is  to  settle  accounts  there- 
under, and  the  Auditor  shall  examine  the  books  of  his 
office,  and  certify  to  the  Secretary  whether  such  balances 
will  be  required  in  the  settlement  of  any  accounts  pending 
in  his  office  5  and  if  it  appears  that  such  balances  will  not 
be  required  for  this  purpose,  then  the  Secretary  may  include 
such  balances  in  his  surplus-fund  warrant,  whether  the 
head  of  the  proper  Department  shall  have  certified  that  it 
may  be  carried  into  the  general  Treasury  or  not.  '  But  no 
appropriation  for  the  payment  of  the  interest  or  principal 
of  the  public  debt,  or  to  which  a  longer  duration  is  given 
by  law,  shall  be  thus  treated. 

taTuSeslse°tcCeof  183t  A11  raoneys  received  from  the  leasing  or  sale  of  ina- 
mMarria3  1847  c  T*ne  hospitals,  or  the  sale  of  revenue-cutters,  or  from  the 
A'fr1^  9i86617i;Sa^e  °^  comm^ssary  stores  to  the  officers  and  enlisted  men 
63, 88.1, 2,  v.  u',  p'.  of  the  Army,  [or  from  the  sale  of  materials,  stores,  or  sup- 

40;  July  28  1866 

c.  299,  s.  25,' v.  14' plies  sold  to  officers  and  soldiers  of  the  Army,]  or  from 
1872, c.  140,  S.v!  sales  of  condemned  clothing  of  the  Navy,  or  from  sales  of 
is??,' c!  34 s""0^  materials,  stores,  or  supplies  to  any  exploring  or  surveying 
i87&J3c.;i3^v!'i8]  expedition  authorized  bylaw,  shall  respectively  revert  to 
i875,^.;  i3i &v.'  ill  *na^  appropriation  out  of  which  they  were  originally  ex- 
isTi^cb/vVp  Ponded,  and  shall  be  applied  to  the  purposes  for  which  they 
m  are  appropriated  by  law. 

Sec.  3692,  R.S. 

DEBTS   DUE   BY   OR   TO    THE    UNITED    STATES.      CLAIMS. 

Par.  j  Par. 

184.  Priority   of    debts    due    the  |  195.  Treasury  notes  payable   for 

United  States  established.  |  debts  of  the  United  States. 

185.  Liability  of  executors,  etc.         196.  Assignment  of  claims  void. 

186.  Priority  of  sureties.  |  197.  Amount  of  debt  due  United 

187.  Notice  of  principal's  deficien-  !  States  to   be  withheld  by 

cy  to  be  immediately  com-  j  Secretary  of  the  Treasury 

muuicated  to  sureties.  in  paying  judgments, 


188.  Sureties   released    after  five 

years  without  suit. 

189.  Compromise  of  claims. 

190.  Purchase  on  execution. 


etc.,  of  debtor  against  the 
United  States  ;  balance 
how  paid  to  claimant;  in- 
terest. 


191.  Discharge  of  poor  debtor  by     198.  Oath  by  persons  prosecuting 

Secretary  of  the  Treasury.  |  claims. 

192.  Discharge  by  the  President.     199.  Who  may  administer  oath. 

193.  What  coin  receivable  in  pay-    200.  Claims  of  disloyalists. 

meut  of  dues  to  the  United  j  201.  Claims  for   collecting,  drill- 
States,  ing,  etc.,  volunteers  to  be 


194.  National-bank    notes,    when 
receivable. 


presented  before  June  30, 
1874. 


THE   MILITARY    LAWS   OP   THE    UNITED   STATES. 


75 


Par. 

202.  Penalty     for    making     false 

claims  against  the  United 
States. 

203.  Suits  for   recovery  of  same. 

204.  Duty  of  district  attorney  as 

to  such  cases. 

205.  Rights  of  persons  bringing 

such  suits. 

206.  Limitation  of  suit. 

207.  Payments  to  officers  for  horses 

lost  in  battle. 

208.  Payment  for  property  lost  in 

military  service. 

209.  Payment  for  horses   lost  by 

capture. 

210.  Payment  for   condemned 

horses  and  equipage. 

211.  Payment    to    guardian    for 

horse  lost  by  minor. 


Par. 

212.  Payment  to  owner  for  horse 

lost  in  military  service. 

213.  Auditor  may  take  testimony 

as  to  steamboats,  cars,  etc. 

214.  Section  1,  act  of  Mar.  3, 1849, 

construed.  Claims  to  be 
presented  prior  to  January 
1, 1876. 

215.  Accounting  officers  to  settle 

claims  of  officers  and  men 
in  military  service  forprop- 
erty  lost  or  destroyed :  (1) 
When  loss  was  with  out  fault 
or  negligence;  (2)  when 
shipped  by  order  on  an  un- 
seaworthy  vessel ;  (3)  when 
lost  in  saving  property  of 
the  United  States.  Limita- 
tion. 


Liability  of  ex- 
,  ITM,  c. 


PRIORITY   OF   DEBTS   DUE   THE   UNITED   STATES. 

184,  Whenever  any  person  indebted  to  the  United  States    Priority  of 

debts   due   the 

is  insolvent,  or  whenever  the  estate  of  any  deceased  debtor,  united  states 
in  the  hands  of  the  executors  or  administrators,  is  insuffi-^Mar.V,6™,  c. 
cient  to  pay  all  the  debts  due  from  the  deceased,  the  debts  ff^ljtro^c.  22! 
due  to  the  United  States  shall  be  first  satisfied  ;  and  the  8'  65'  v>  *'  p>  676> 
priority  hereby  established  shall  extend  as  well  to  cases  in  Sec*  8466'  B'  s' 
which  a  debtor,  not  having  sufficient  property  to  pay  all 
his  debts,  makes  a  voluntary  assignment  thereof,  or  in 
which  the  estate  and  effects  of  an  absconding,  concealed, 
or  absent  debtor  are  attached  by  process  of  law,  as  to  cases 
iii  which  an  act  of  bankruptcy  is  committed.1 

185.  Every  executor,  administrator,  or  assignee,  or  other 
person,  who  pays  any  debt  due  by  the  person  or  estate  from 

whom  or  for  which,  he  acts,  before  he  satisfies  and  pays  theerfe.*'  65'  v'  lf  P' 
debts  due  to  the  United  States  from  such  person  or  estate,  p^i 
shall  become  answerable  in  his  own  person  and  estate  for  j 
the  debts  so  due  to  the  United  States,  or  for  so  much596- 
thereof  as  may  remain  due  and  unpaid.    (See  sec.  5101  ,  R.  S.)  Sec-  3467'  B*  s* 
186.  Whenever  the  principal  in  any  bond  given  to  the    priority  of 
United  States  is  insolvent,  or  whenever,  such  principal  SUM£?  2,  1799,  c. 
being  deceased,  his  estate  and  effects  which  come  to  thepfc.8'  b5'  v'  lf  p' 
hands  of  his  executor,  administrator,  or  assignee,  are  in-  Sec.  3468>  B.  8. 
sufficient  for  the  payment  of  his  debts,  and,  in  either  of  * 
such  cases,  any  surety  on  the  bond,  or  the  executor,  ad- 

'TJ.  S.  v.  Fisher,  2  Cr.,  358;  TJ.  S.  v.  Hooe,3  Cr.,  73;  Harrison  v.  Slerry,  5  Cr.,  289; 
Prince  v.  Bartlett,  8  Cr.,  431  ;  TJ.  S.  v,  Bryan,  9  Cr.,  374;  Thelusson  •».  Smith,  2  Wh., 
396;  II.  S.  v.  Howland,  4  Wh.,108;  Conadw.  Insurance  Company,  1  Pet.,  386;  Hunter 
v.  U.  S.,  5  Pet..  173;  TJ.  S.  v.  State  Bank,  G  Pet.,  29;  TJ.  S.  v.  Hack,  8  Pet.,  271;  Brent 
v.  Bank  of  Washington,  10  Pet.,  596;  Beaston  v.  Farmers'  Bank,  12  Pet.,  102;  U.  S. 
v.  Herron,  20  Wall.,  251  ;  Ba.yne  et  al.,  Trustees,  v,  TJ,  S.,  93  TJ,  S.,  642, 


76       THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

ministrator,  or  assignee  of  such  surety  pays  to  the  United 
States  the  money  due  upon  such  bond,  such  surety,  his 
executor,  administrator,  or  assignee,  shall  have  the  like 
priority  for  the  recovery  and  receipt  of  the  moneys  out  of 
the  estate  and  effects  of  such  insolvent  or  deceased  prin- 
cipal as  is  secured  to  the  United  States;  and  may  bring 
and  maintain  a  suit  upon  the  bond,  in  law  or  equity,  in  his 
own  name,  for  the  recovery  of  all  moneys  paid  thereon.1 

SURETIES  —  LIABILITY   AND   RELEASE. 

ci^8Cdeficilncny     187<  Hereafter,  whenever  any  deficiency  shall  be  dis- 
to  be  immediately  covered  in  the  accounts  of  any  official  of  the  United  States, 

communicated  to  •,-,  •,-,•,-,•' 

sureties.  or  of  any  officer  disbursing  or  chargeable  with  public 

isss?  v.  25,  pg787.'  money,  it  shall  be  the  duty  of  the  accounting  officers 
making  such  discovery  to  at  once  notify  the  head  of  the 
Department  having  control  over  the  affairs  of  said  officer 
of  the  nature  and  amount  of  said  deficiency,  and  it  shall 
be  the  immediate  duty  of  said  head  of  Department  to  at 
once  notify  all  obligors  upon  the  bond  or  bonds  of  such 
official  of  the  nature  of  such  deficiency  and  the  amount 
thereof.  Said  notification  shall  be  deemed  sufficient  if 
mailed  at  the  post-office  in  the  city  of  Washington,  District 
of  Columbia,  addressed  to  said  sureties  respectively,  and 
directed  to  the  respective  post-offices  where  said  obligors 
may  reside,  if  known;  but  a  failure  to  give  or  mail  such 
notice  shall  not  discharge  the  surety  or  sureties  upon  such 
bond.  Act  of  August  8,  1888  (25  Stat.  L.,  387). 
Sureties  re-  ig8.  That  if.  upon  the  statement  of  the  account  of  any 

leased  after  five 

years  without  official  of  the  United  States,  or  of  any  officer  disbursing 
sec.  2,  ibid.  or  chargeable  with  public  money,  by  the  accounting  offi- 
cers of  the  Treasury,  it  shall  thereby  appear  that  he  is 
indebted  to  the  United  States,  and  suit  therefor  shall  not 
be  instituted  within  five  years  after  such  statement  of  said 
account,  the  sureties  on  his  bond  shall  not  be  liable  for 
such  indebtedness.  Sec.  2,  ibid. 

COMPROMISE  OF  CLAIMS   AND   PURCHASE   ON  EXECUTION. 

189>  Upon  a  report  by  a  district  attorney,  or  any  special 
76()vi2  )  attorney  or  agent  having  charge  of  any  claim  in  favor  of 
74°;  _  the  United  States,  showing  in  detail  the  condition  of  such 

U.  S.  v  .  George, 

6Biatch.,406.^    claim,  and  the  terms  upon  which  the  same  may  be  com- 
Sec.  3469,  R.  s.  promised,  and  recommending  that  it  be  compromised  upon 

1  The  priority  given  in  this  section  to  sureties  does  not  apply  to  sureties  on  a  recog- 
nizance in  a  criminal  case.  U.  S.  v.  Itydor,  110  U.  S.,  729;  U.  S.  v.  Fisher,  2  Cr.,  358; 
U.  S.  0.  Hooe,  3  Cr.,  73  ;  Prince  v.  Bartlett,  8  Cr.,  431  ;  U.  S.  v.  Bryan,  9  Cr.,  374;  The- 
lusson  v.  Smith,  2  Wh.,396;  U.  S.v.  Rowland,  4  Wh.,  108;  Conard  v.  Insurance  Com- 
pany, 1  Pet.,  439;  Hunter  v.  TJ.  S.,  5  Pet..  173  ;  Child  v.  Shoemaker,  1  Wash.,  494;  U,  S. 
v.  £ing,  Wall.  C.  C.,  12;  Johns  v.  Brodhag,  1  Cr.  C.  CM  235. 


' 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  77 

the  terms  so  offered,  and  upon  the  recommendation  of  the 
Solicitor  of  the  Treasury,  the  Secretary  of  the  Treasury  is 
authorized  to  compromise  such  claim  accordingly.  But 
the  provisions  of  this  section  shall  not  apply  to  any  claim 
arising  under  the  postal  laws. 

190.  At  every   sale,  on   execution,  at  the   suit  of  the    Pur chase  on 

execution. 

United  States,  of  lands  or  tenements  of  a  debtor,  thel7^y22M824,Fc. 
United  States  may,  by  such  agent  as  the  Solicitor  of  the 
Treasury  shall  appoint,  become  the  purchaser  thereof;  but 
in  no  case  shall  the  agent  bid  in  behalf  of  the  United 
States  a  greater  amount  than  that  of  the  judgment  for 
which  such  estate  may  be  exposed  to  sale,  and  the  costs. 
Whenever  such  purchase  is  made,  the  marshal  of  the  dis- 
trict in  which  the  sale  is  held  shall  make  all  needful  con- 
veyances, assignments,  or  transfers  to  the  United  States. 

DISCHARGEE   OF   POOR   DEBTORS. 

191.  Any  person  imprisoned  upon  execution  issuing  from    Discharge   of 
any  court  of  the  United  States,  for  a  debt  due  to  the  Secretary  of  the 
United  States,  which  he  is  unable  to  pay,  may,  at  any  time    June1?,'  i?98,  c. 
after  commitment,  make  application  in  writing,  to  the  Sec-  pp. S,  562.'  ^'  ' 
retary  of  the  Treasury,  stating  the  circumstances  of  his   sec.  3471,  R.S. 
case,  and  his  inability  to  discharge  the  debt;  and  there- 
upon the  Secretary  may  make,  or  require  to  be  made,  an 
examination  and  inquiry  into  the  circumstances  of  the 

debtor,  by  the  oath  of  the  debtor,  which  the  Secretary,  or 
any  other  person  by  him.  specially  appointed,  is  authorized 
to  administer,  or  otherwise,  as  the  Secretary  shall  deem 
necessary  and  expedient,  to  ascertain  the  truth ;  and  upon 
proof  made  to  his  satisfaction,  that  the  debtor  is  unable  to 
pay  the  debt  for  which  he  is  imprisoned,  and  that  he  has 
not  concealed  or  made  any  conveyance  of  his  estate,  in 
trust,  for  himself,  or  with  an  intent  to  defraud  the  United 
States,  or  to  deprive  them  of  their  legal  priority,  the  Secre- 
tary is  authorized  to  receive  from  such  debtor  any  deed, 
assignment,  or  conveyance  of  his  real  or  personal  estate, 
or  any  collateral  security,  to  the  use  of  the  United  States. 
Upon  a  compliance  by  the  debtor  with  such  terms  and  con- 
ditions as  the  Secretary  may  judge  reasonable  and  proper, 
the  Secretary  must  issue  his  order,  under  his  hand,  to  the 
keeper  of  the  prison,  directing  him  to  discharge  the  debtor 
from  his  imprisonment  under  such  execution.  The  debtor 
shall  not  be  liable  to  be  imprisoned  again  for  the  debt; 
but  the  judgment  shall  remain  in  force,  and  may  be  satis- 
fied out  of  any  estate  which  may  then,  or  at  any  time  after- 
ward, belong  to  the  debtor.  The  benefit  of  this  section 


78  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

« 

shall  iiot  be  extended  to  any  person  imprisoned  for  any 
fine,  forfeiture,  or  penalty,  incurred  by  a  breach  of  any 
law  of  the  United  States,  or  for  moneys  had  and  received 
by  any  officer,  agent,  or  other  person,  for  their  use;  nor 
shall  its  provisions  extend  to  any  claim  arising  under  the 
postal  laws.1 

th?pres1dent  b  y     *^'  Wnenever  any  person  is  imprisoned  upon  execution 
Mar.  3,  1817,  c.  for  a  debt  due  to  the  United  States,  which  he  is  unable  to 

114,  v.  3,  p.  o99.  .  . 

Sec  3472  B  s  Pa^'  all(^  k*s  case  is  such  as  does  not  authorize  his  dis- 
charge by  the  Secretary  of  the  Treasury,  under  the  preced- 
ing section,  he  may  make  application  to  the  President, 
who,  upon  proof  made  to  his  satisfaction  that  the  debtor  is 
unable  to  pay  the  debt,  and  upon  a  compliance  by  the 
debtor  with  such  terms  and  conditions  as  the  President 
shall  deem  proper,  may  order  the  discharge  of  such  debtor 
from  his  imprisonment.  The  debtor  shall  not  be  liable  to 
be  imprisoned  again  for  the  same  debt;  but  the  judgment 
shall  remain  in  force,  and  may  be  satisfied  out  of  any 
estate  which  may  then,  or  at  any  time  afterward,  belong 
to  the  debtor.2 

TENDER. 

what  coin  re-     193.  ^o  gOid  or  silver  other  than  coin  of  standard  fiue- 

ceivable  in  pay- 

ment of  dues  to  ness  of  the  United  States,  shall  be  receivable  in  payment 

the      United.,  ,.         «-r    ..     »   «/  •*    a    • 

states.  of  dues  to  the  United  States,  except  as  provided  m  sec- 

lOM.^v'A^pp!  tion  twenty-  three  hundred  and  sixty-six,  Title  u  PUBLIC 
i857?c;.56^s.'2f3;  LANDS,"  and  in  section  thirty-five  hundred  and  sixty-seven, 
v.  11,  P.  163.  Title  u  COINAGE.  WEIGHTS,  AND  MEASURES."  3 

Sec  3474  R  S 

National-  bank  194.  The  notes  of  national  banks  shall  be  received  at 
?e?veabi<Then  re"  Par  for  a11  debts  aild  demands  owing  by  the  United  States 
10J  Usne2|  ^g'0-  to  any  person  within  the  United  States,  except  interest  on 
loo1.  '  the  public  debt,  or  in  redemption  of  the  national  currency. 


Sec.  3475,  B.  S.  (&*>  seCt  51$2,  R.  S.) 

aTaMeUf  or  debts     *^'  Treasury  notes  bearing  interest  may  be  paid  to  any 
c?&ited°states.  creditor  of  the  United  States  at  their  face  value,  excluding 

Mar.  3,  1863,  c.  .     .  »•*.'•«• 

73,  s.  2,  v.  12,  p.  interest,  or  to  any  creditor  willing  to  receive  them  at  par, 
ISM,  £  I™*.  2,3v.  including  interest. 


13,  p.  218. 
Sec.  3476,  B.S.          ASSIGNMENTS   OF   CLAIMS,  POWERS   OF   ATTORNEY. 


0fAcilfm8mvoid8  *^'  ^^  transfers  and  assignments  made  of  any  claim 
unless,  etc.  '  upon  the  United  States,  or  of  any  part  or  share  thereof, 
si,  s.  i,  V.  10,  V  or  interest  therein,  whether  absolute  or  conditional,  and 
c^ee^^p9'/!846'  whatever  maybe  the  consideration  therefor,  and  all  powers 
Sec.  3477,  R.s.°f  attorney,  orders,  or  other  authorities  for  receiving  pay- 

1  The  discharge  of  a  debtor  in  accordance  with  the  provisions  of  this  section  does 
not  operate  to  discharge  his  sureties  from  liability.     (1  Paine,  525.)     See  also  TJ.  S.  v. 
Stansbury,  1  Pet.,  573;  U.  S.  v.  Eiuggold,  5  Pet.,  150;  Hunter  v.  TJ.  S.,  5  Pet.,  173;  U.S. 
v.  Sturges,  1  Paine,  525. 

2  See  U.  S.  v.  Kinggold,  8  Pet.,  150. 

8  See  sections  2366  and  3567  of  the  Kevised  Statutes. 


UNIVERSITY 

THE    MILITARY   LAWS    OP.  THE    UNITED    STATES.  79 

^ 

ment  of  any  such  claim,  or  of  any  part  or  share  thereof, 
shall  be  absolutely  null  and  void,  unless  they  are  freely 
made  and  executed  in  the  presence  of  at  least  two  attest- 
ing witnesses,  after  the  allowance  of  such  a  claim,  the 
ascertainment  of  the  amount  due,  and  the  issuing  of  a 
warrant  for  the  payment  thereof.  Such  transfers,  assign- 
ments, and  powers  of  attorney,  must  recite  the  warrant 
for  payment,  and  must  be  acknowledged  by  the  person 
making  them,  before  an  officer  having  authority  to  take 
acknowledgments  of  deeds,  and  shall  be  certified  by  the 
officer;  and  it  must  appear  by  the  certificate  that  the 
officer,  at  the  time  of  the  acknowledgment,  read  and  fully 
explained  the  transfer,  assignment,  or  warrant  of  attorney 
to  the  person  acknowledging  the  same.1 

SET-OFF. 

197.  When  any  final  judgment  recovered   against  thedue  Unit0( 

United  States  or  other  claim  duly  allowed  by  legal  author-  states  to  be  with- 
held   by    Secre- 

ity,  shall  be  presented  to  the  Secretary  of  the  Treasury  for  t-ary  of  Treasury 
payment,  and  the  plaintiff  or  claimant  therein  shall  be  ™en?tsyiDeStcJ,u  ff 

.     ,    ,  ,     ,    ,       ..       -r-r    .,     ,01;  debtor  against 

indebted  to  the  United  States  in  any  manner,  whether  as  united  states, 
principal  or  surety,  it  shall  be  the  duty  of  the  Secretary  to  1375%.  is,  p?48i.' 
withhold  payment  of  an  amount  of  such  judgment  or  claim 
equal  to  the  debt  thus  due  to  the  United  States ;  and  if 
such  plaintiff  or  claimant  assents  to  such  set-off,  and  dis- 
charges his  judgment  or  an  amount  thereof  equal  to  said 
debt  or  claim,  the  Secretary  shall  execute  a  discharge  of 
the  debt  due  from  the  plaintiff  to  the  United  States.  But 
if  such  plaintiff,  or  claimant,  denies  his  indebtedness  to  the 
United  States,  or  refuses  to  consent  to  the  set-off,  then  the 
Secretary  shall  withhold  payment  of  such  further  amount 
of  such  judgment,  or  claim,  as  in  his  opinion  will  be  suffi. 
cient  to  cover  all  legal  charges  and  costs  in  prosecuting 
the  debt  of  the  United  States  to  final  judgment.  And  if 
such  debt  is  not  already  in  suit,  it  shall  be  the  duty  of  the 
Secretary  to  cause  legal  proceedings  to  be  immediately 

JThe  accounting  officers  of  the  Treasury  will  not  approve  powers  of  attorney  to 
demand  and  receive  moneys  due  upon  claims  against  the  United  States  when  such 
powers  are  not  executed  in  accordance  with  the  provisions  of  section  3477  of  the 
Revised  Statutes.  (1  Compt.  Dec.,  142.)  Section  3477  of  the  Revised  Statutes,  mak- 
ing null  and  void  all  assignments  and  po\vers  of  attorney  to  collect  any  claim  or 
demand  against  the  Government  (unless  the  power  of  attorney  is  given'  after  the 
settlement  of  the  claim  and  the  issuance  of  the  warrant  in  pavment)  applies  to 
liquidated,  certain,  and  undisputed  demands  as  well  as  to  those  which  are  unliqui- 
dated, uncertain,  or  disputed.  (Ibid.,  276.)  Under  the  decisions  of  the  courts  the 
accounting  officers  are  required,  notwithstanding  the  provisions  of  section  3477  of 
the  Revised  Statutes,  to  credit  disbursing  officers  with  payments  actually  made  by 
them  under  powers  of  attorney,  provided  it  is  shown  that,  at  the  time  of  such  pay- 
ment, such  powers  are  undisputed  and  have  not  been  revoked,  either  by  the  volun- 
tary action  of  the  principal  or  by  his  death.  (Ibid.,  142, 431.) 

The  assignment  of  a  quartermaster's  voucher,  unless  made  "after  the  allowance 
of  such  a  claim  "  and  in  conformity  with  all  the  other  requirements  of  section  3477 
of  the  Revised  Statutes,  is  "absolutely  null  and  void."  The  exigencies  of  the  war 
and  of  the  Government  service  immediately  after  the  war,  which  at  one  time  were 
relied  upon  to  support  the  practice  of  paying  the  assignees  of  such  vouchers,  can 
not  be  made  available  in  deciding  cases  now  arising.  (3  Dig.,  Compt.  Dec.,  45.) 


80  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

commenced  to  enforce  the  same,  and  to  cause  the  same  to 

be  prosecuted  to  final  judgment  with  all  reasonable  dis- 

Baiance,   how  patch.    And  if  in  such  action  judgment  shall  be  rendered 

paid  to  claimant.  * 

against  the  United  States,  or  the  amount  recovered  for 
debt  and  costs  shall  be  less  than  the  amount  so  withheld 
as  before  provided,  the  balance  shall  then  be  paid  over  to 
interest.  such  plaintiff  by  such  Secretary  with  six  per  cent  interest, 
thereon  for  the  time  it  has  been  withheld  from  the  plaintiff. 
Act  of  March  3,  1875  (18  Stat  L.,  481). 

PROSECUTION   OF    CLAIMS. 

flonsap?osbecuptifnrg  198-  Any  P^son  prosecuting  claims,  either  as  attorney 
clS3y  17  1862  c.  or  on  nis  owu  accouutj  before  any  of  the  Departments  or 
205,  a.  i,  v.  12,'p.  Bureaus  of  the  United  States,  shall  be  required  to  take  the 


3478  R  s  oa^n  °*  a^e^ance?  and  to  support  the  Constitution  of  the 
'  United  States,  as  required  of  persons  in  the  civil  service. 
(See  sees.  1756,  1757  E.  S.) 

oa^n  Pr°vided  for  in  the  preceding  section  may 


205Usy217v1i22'  c'  ^e  taken  before  any  justice  of  the  peace,  notary  public,  or 
6i°-  other  person  who  is  legally  authorized  to  administer  an  oath 

sec.  3479,  R.S.  in  the  State  or  district  where  the  same  maybe  administered. 

claims  of  dis-  200.  It  shall  be  unlawful  for  any  officer  to  pay  any  account, 
°Mar8  \  1867.  claim,  or  demand  against  the  United  States  which  accrued 
wi.  P  or  existed  prior  to  the  thirteenth  day  of  April,  eighteen 

sec.  3480,  R.S.  hundred  and  sixty-one,  in  favor  of  any  person  who  pro- 
moted, encouraged,  or  in  any  manner  sustained  the  late 
rebellion,  or  in  favor  of  any  person  who  during  such  re- 
bellion was  not  known  to  be  opposed  thereto,  and  distinctly 
in  favor  of  its  suppression  5  and  no  pardon  heretofore 
granted,  or  hereafter  to  be  granted,  shall  authorize  the 
payment  of  such  account,  claim,  or  demand,  until  this  sec- 
tion is  modified  or  repealed.  But  this  section*  shall  not  be 
construed  to  prohibit  the  payment  of  claims  founded  upon 
contracts  made  by  any  of  the  Departments,  where  such 
claims  were  assigned  or  contracted  to  be  assigned  prior  to 
the  first  day  of  April,  eighteen  hundred  and  sixty-one,  to 
the  creditors  of  such  contractors,  loyal  citizens  of  loyal 
States,  in  payment  of  debts  incurred  prior  to  the  first  day 
of  March,  eighteen  hundred  and  sixty  -one.1 

claims  for  coi-     201.  No  claims  against  the  United  States,  for  collecting, 

lecting,  etc.,  vol 

unteersto  bepre-  drilling,  or  organizing  volunteers  for  the  war  of  the  re- 
?*,      belliou,  shall  be  audited  or  paid  unless  presented  before 

1  By  the  act  of  March  3,  1877,  chapter  105,  volume  19,  page  362,  provision  was  made 
for  the  payment  of  the  amounts  due  to  mail  contractors  for  mail  service  performed 
in  the  States  recently  in  rebellion,  and  before  said  States  respectively  engaged  in 
war  against  the  United  States;  and  the  provisions  of  tiiis  section  of  the  lievised 
Statutes  were  declared  to  be  not  applicable  to  the  payments  therein  authorized. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  81 

the  thirtieth  day  of  June,  eighteen  hundred  and  seventy-    Mar-  3-  1873,0. 

*     226,  s.  1,  v.  17,  p. 

four.    No  claims  for  horses  lost  prior  to  the  first  day  of  soo. 
January,  eighteen  hundred  and  seventy-two,  shall  be  aud-    sec.  3489,  B.S. 
ited  or  paid  unless  presented  before  the  thirtieth  day  of 
June,  eighteen  hundred  and  seventy-four. 


202.  Any  person  not  in  the  military  or  naval  forces  of  ^j^1*/  for 
the  United  States,  or  in  the  militia  called  into  or  actually  oi  a  inui  against 
employed  in  the  service  of  the  United  States,  who  shall  do    Mar.  2,  ises,'  c. 
or  commit  any  of  the  acts  prohibited  by  any  of  the  pro-  698.8'  ' 
visions  of  section   fifty-four    hundred    and    thirty-eight,    sec.3490,R.s. 
Title  "  CRIMES,"  shall  forfeit  and  pay  to  the  United  States 

the  sum  of  two  thousand  dollars,  and,  in  addition,  double 
the  amount  of  damages  which  the  United  States  may  have 
sustained  by  reason  of  the  doing  or  committing  such  act, 
together  with  the  costs  of  suit;  and  such  forfeiture  and 
damages  shall  be  sued  for  in  the  same  suit. 

203.  The  several  district  courts  of  the  United  States,  the    Suits  for  recov- 

ery  of  same. 

supreme  court  of  the  District  of  Columbia,  the  several  dis-    Mar.  2,  ISGS,  c. 

trict  courts  of  the  Territories  of  the  United  States,  within  698. 

whose  jurisdiction  al  limits  the  person  doing  or  committing    sec.349i,  R.  s. 

such  act  shall  be  found,  shall,  wheresoever  such  act  may 

have  been  done  or  committed,  have  full  power  and  juris- 

diction to  hear,  try,  and  determine  such  suit.     Such  suit 

may  be  brought  and  carried  on  by  any  person,  as  well  for 

himself  as  for  the  United  States;  the  same  shall  be  at  the 

sole  cost  and  charge  of  such  person,  and  shall  be  in  the 

name  of  the  United  States,  but  shall  not  be  withdrawn  or 

discontinued  without  the  consent,  in  writing,  of  the  judge 

of  the  court  and  the  district  attorney,  first  filed  in  the  case, 

setting  forth  their  reasons  for  such  consent. 

204.  It  shall  be  the  duty  of  the  several  district  attorneys  trgu  ^^  dia88 
of  the  United  States  for  the  respective  districts,  for  the  ^^^X  c 
District  of  Columbia,  and  for  the  several  Territories,  to  t>e^  s.  5,  V.  12,'  p. 
diligent  in  inquiring  into  any  violation  of  the  provisions    s'ec.3492,R.s. 
of  section  thirty-four  hundred  and  ninety  by  persons  liable 

to  such  suit,  and  found  within  their  respective  districts  or 
Territories,  and  to  cause  them  to  be  proceeded  against  in 
due  form  of  law  for  the  recovery  of  such  forfeiture  and 
damages.  And  such  person  may  be  arrested  and  held  to 
bail  in  such  sum  as  the  district  j  udge  may  order,  not  exceed- 
ing the  sum  of  two  thousand  dollars,  and  twice  the  amount 
of  the  damages  sworn  to  in  the  affidavit  of  the  person 
bringing  the  suit. 

205.  The  person  bringing  said  suit  and  prosecuting  it  to    Eights  of  per- 

0  sons  bringing 

final  judgment  shall  be  entitled  to  receive  one-half  the  such  suits. 
1919  -  6 


82  THE    MILITARY   LAWS   OF    THE    UNITED    STATES. 

Mar  2, 1863,  c.  amount  of  such  forfeiture,  as  well  as  one-lialf  the  amount 

67,  s.  6,  v.  12,  p. 

698.  of  the  damages  he  shall  recover  and  collect;  and  the  other 

sec.3493,B.s.  half  thereof  shall  belong  to  and  be  paid  over  to  the  United 
States;  and  such  person  shall  be  entitled  to  receive  to  his 
own  use  all  costs  the  court  may  award  against  the  defend- 
ant, to  be  allowed  and  taxed  according  to  any  provision  of 
law  or  rule  of  court  in  force,  or  that  shall  be  in  force  in 
suits  between  private  parties  in  said  court :  Provided,  That 
such  person  shall  be  liable  for  all  costs  incurred  by  himself 
in  the  case,  and  shall  have  no  claim  therefor  on  the  United 
States. 
Limitation  of  206,  E  very  such  suit  shall  be  commenced  within  six  years 

8Usec.  7,  ibid,      from  the  commission  of  the  act,  and  not  afterward. 

Sec.3494,  B.  S. 

PAYMENT   FOB   HORSES   LOST   IN   SERVICE. 

o&ic  eV^Vor     207t  Auy  field'  or  staff'  or  otlier  officer5  mounted  militia- 

bat3e8ete°8t  in  man>  volunteer,  ranger,  or  cavalryman,  engaged  in  the 

Mar.  3,  is49,  c.  military  service  of  the  United  States,  who  sustains  damage 

June  22,' 1874,  c!  without  any  fault  or  negligence  on  his  part,  while  in  the 

395,  v.  18,  p.  193.  .  •[  *          .      ,  ,    '      ,       , 

service,  by  the  loss  of  a  horse  in  battle,  or  by  the  loss  of  a 

Sec  3482  B  S 

'  horse  wounded  in  battle,  which  dies  of  the  wound,  or  which, 
being  so  wounded,  is  abandoned  by  order  of  his  officer  and 
lost,  or  who  sustains  damage  by  the  loss  of  any  horse  by 
death  or  abandonment  because  of  the  unavoidable  dangers 
of  the  sea,  when  on  board  a  United  States  transport  vessel, 
or  because  the  United  States  fails  to  supply  transportation 
for  the  horse,  and  the  owner  is  compelled  by  the  order  of 
his  commanding  officer  to  embark  and  leave  him,  or  in  con- 
sequence of  the  United  States  failing  to  supply  sufficient 
forage,  or  because  the  rider  is  dismounted  and  separated 
from  his  horse  and  ordered  to  do  duty  on  foot  at  a  station  de- 
tached from  his  horse,  or  when  the  officer  in  the  immediate 
command  orders  the  horse  turned  out  to  graze  in  the  woods, 
prairies,  or  commons,  because  the  United  States  fails  to 
supply  sufficient  forage,  and  the  loss  is  consequent  thereon, 
or  for  the  loss  of  necessary  equipage,  in  consequence  of 
the  loss  of  his  horse,  shall  be  allowed  and  paid  the  value 
thereof  not  to  exceed  two  hundred  dollars.  But  any  pay- 
ment which  is  made  to  any  one  for  the  use  and  risk,  or  for 
forage,  after  the  death,  loss,  or  abandonment  of  his  horse, 
shall  be  deducted  from  the  value  thereof,  unless  he  satisfies 
the  paymaster  at  the  time  he  makes  the  payment,  or  there- 
after shows,  by  proof,  that  he  was  remounted,  in  which 
case  the  deduction  shall  only  extend  to  the  time  he  was  on 
foot.  And  any  payment  made  to  any  person  above  men- 
tioned, on  account  of  clothing,  to  which  he  is  not  entitled 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  83 

by  law,  shall  be  deducted  from  the  value  of  his  horse  or 
accouterments.1  (See  sec.  277,  R.  S.) 

208.  Every  person  who  sustains  damage  by  the  capture    Payment  for 

J    '  i_         i  property  lost 

or  destruction  by  an  enemy,  or  by  the  abandonment  or  jn  military  serv. 
destruction  by  the  order  of  the  commanding  general,  the  Mar.  3, 1349,  c. 
commanding  officer,  or  quartermaster,  of  any  horse,  mule,  Mar%,'i86:?c.78,' 

i    .    i  Y  +U  ,    8.5,  v.  12,  p.  743. 

ox,  wagon,  cart,  sleigh,  harness,  steamboat  or  other  vessel,    stuart ».  u.  s.t 

18  Wall    84 

railroad-engine  or  railroad-car,  while  such  property  is  in 
the  military  service,  either  by  impressment  or  contract,2  or  !  *•»•».* 
who  sustains  damage  by  the  death  or  abandonment  and  loss 
of  any  horse,  mule,  or  ox,  while  in  the  service,  in  consequence 
of  the  failure  on  the  part  of  the  United  States  to  furnish 
the  same  with  sufficient  forage,  or  whose  horse,  mule,  ox, 
wagon,  cart,  boat,  sleigh,  harness,  vessel,  railroad-engine, 
or  railroad-car  is  lost  or  destroyed  by  unavoidable  accident 
while  such  property  is  in  the  service,  shall  be  allowed  and 
paid  the  value  thereof  at  the  time  when  such  property  was 
taken  into  the  service,  except  in  cases  where  the  risk  to 
which  the  property  would  be  exposed  was  agreed  to  be  in- 
curred by  the  owner :  Provided,  It  appears  that  such  loss, 
capture,  abandonment,  destruction,  or  death  was  without 
any  fault  or  negligence  on  the  part  of  the  owner  of  the 
property,  and  while  the  property  was  actually  employed  in 
the  service  of  the  United  States. 

209.  The  two  preceding  sections  shall  extend  to  all  cases    Payment  for 
of  the  loss  of  horses  by  any  officer,  non-commissioned  offi-  capture.  °8 
cer,  or  private  in  the  military  service  of  the  United  States,  i5oUvnei3,p.i82.c' 
while  in  the  line  of  his  duty  in  such  service,  by  capture  by    sec. 3*84, B.S. 
the  enemy,  whenever  it  shall  appear  that  such  officer,  non- 
commissioned officer,  or  private  was  ordered  by  his  superior 

officer  to  surrender  to  the  enemy,  and  such  capture  was 
made  in  pursuance  of  such  surrender. 

210.  Whenever  any  horse  is  condemned  by  a  board  of   Payment  for 

condemn  ed 

officers,  on  account  of  his  unfitness  for  service,  in  conse-  horses  and  eqm- 
quence  of  the  Government  failing  to  supply  forage,  such  pafiar.  3, 1349,  c. 

,     ,   .  .'      .         129,s.7,v.9,p.416. 

horse  and  his  equipage  shall  be  allowed  and  paid  for: 
Provided,  It  shall  be  proven,  by  satisfactory  evidence, 
whether  oral  or  written,  that  the  condemned  horse  and 
the  equipage  were  turned  over  to  a  quartermaster  of  the 
Army,  Avhether  any  receipt  therefor  was  given  and  pro- 
duced, or  not. 

'To  authorize  a  judgment  under  this  section,  it  is  necessary  to  prove  (1)  that  the 
claimant-downed  a  horse  which  he  took  into  the  military  service;  (2)  that  the  horse 
was  lost;  (3)  that  the  loss  resulted  from  an  exigency  or  necessity  of  the  military 
service;  and  (4)  that  the  loss  was  without  fault  or  negligence  on  the  part  of  the 
claimant.  Irby  v.  U.  S  ,  18  C.  Cls.  S.  K.,  259 ;  Shaw's  Case,  8  C.  Cls.  R.,  488. 

2The  transportation  from  post  to  post  of  military  stores  remote  from  the  seat  of 
actual  war,  not  forming  a  portion  of  an  advancing  or  retreating  army,  gives  to  the 
contractor  merely  the  character  of  a  carrier.  He  is  not  in  the  muitary  service  of  the 
United  States  within  the  meaning  of  the  act  of  March  3,  1849.  Giittman  v.  TJ.  S., 
9  Ct.  Cls.,  60;  Stuart  v.  U.  S.,  18  Wall.,  84. 


84  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Payment  to     21  1.  When  any  minor  engaged  in  the  military  service 

guardian  for  J 

horse  lost  byOf  the  United  States,  a-nd  provided  with  a  horse  or  equip- 
Mar.  3,i849,  c.  men  ts,  or  with  military  accouterments,  by  his  parent  or 

129,8.5,v.9,p.415. 

guardian,  dies,  without  paying  for  the  property,  and  the 
same  is  lost,  captured,  destroyed,  or  abandoned  in  the 
manner  before  mentioned,  such  parent  or  guardian  shall 
be  allowed  pay  therefor,  on  making  satisfactory  proof,  as 
in  other  cases,  and  the  further  proof  that  he  is  entitled 
thereto  by  having  furnished  the  same. 


horse     ^^'  When  anv  Person  other  than  a  minor,  engaged  in  the 
lost  in  military  military  service,  is  provided  with  a  horse  or  equipments, 
Mar.  3,  1849,  c,  or  with  military  accouterments,  by  any  person,  being  the 
s  owner  thereof,  who  takes  the  risk  of  such  horse,  equip- 
'  ments,  or  military  accouterments,  on  himself,  and  the  same 
is  lost,  captured,  destroyed,  or  abandoned,  in  the  manner 
before  mentioned,  such  owner  shall  be  allowed  pay  there- 
for, on  making  satisfactory  proof,  as  in  other  cases,  and  the 
further  proof  that  he  is  entitled  thereto,  by  having  fur- 
nished the  same,  and  having  taken  the  risk  on  himself. 
Auditor  may     213.  Iii  executing  so  much  of  the  preceding  sections  as 

taketestiraonyas  .  ,  _ 

to    steamboats,  provides  for  payment  tor  steamboats  and  other  vessels,  and 

cars,  etc.  ,  ,  ,        ,  ., 

June  25,  1864,  c.  railroad  engines  or  cars,  lost  or  destroyed  while  in   tne 

leo!  8'  p'  military  service  of  the  United  States,  the  Third  Auditor 

sec.  3488,  K.S.  of  the  Treasury  is  authorized,  in  person,  or  in  such  manner 

as  he  may  deem  most  compatible  with  the  public  interests, 

to  take  testimony,  and  make  such  investigations  as  he  may 

deem  necessary  in  adjudicating  claims  5  and  for  such  neces- 

sary expenses  incurred  therein,  payment  may  be  made 

upon  proper  vouchers,  certified  and  approved  by  the  Third 

Auditor. 

214.  The  first  section  of  the  act  of  March  third,  eighteen 

hundred  and  forty-nine,1  providing  for  the  payment  for 

sec.  i,  act  of  horses  and  equipments  lost  by  officers  or  enlisted  men  in 

strued!  the  military  service  shall  not  be  construed  to  deny  payment 

1874,  v.i8,  p.  193'.  to  such  officers  or  enlisted  men,  for  horses  which  may  have 

been  purchased  by  them  in   States  in  insurrection  5  and 

payment  in  any  case  shall  not  be  refused  where  the  loss 

resulted  from  any  exigency  or  necessity  of  the  military 

service,  unless  it  was  caused  by  the  fault  or  negligence  of 

claims  to  be  such  officers  or  enlisted  men.     That  no  claims  under  said 

presented    prior  -t-ni  •  •>          -i 

to  Jan.  i,  1876.  section  or  this  amendment  thereto  shall  be  considered 
unless  presented  prior  to  the  first  day  of  January,  eighteen 
hundred  and  seventy-six.  Act  of  June  22,  1874  (18  Stat. 
L.,  193}. 

lection  3482,  Revised  Statutes,  par.  207,  supra. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  85 

215.  That  the  proper  accounting  officers  of  the  Treasury    Accounting 

^  officers  to  settle 

be,  and  they  are  hereby,  authorized  and  directed  to  examine  claims»  of  officers 

and  men  in  mili- 

into,  ascertain,  and  determine  the  value  of  the  private  tary  service  for 

.    property  lost  or 

property  belonging  to  officers  and  enlisted  men  in  the  mill-  destroyed, 
tnry  service  of  the  United  States  which  has  been,  or  may 
hereafter  be,  lo*t  or  destroyed  in  the  military  service,  under 
the  following  circumstances : 
First.  When  such  loss  or  destruction  was  without  fault    when  loss  or 

destruction   was 

or  negligence  on  the  part  of  the  claimant.  without  fault  or 


Second.  Where  the  private  property  so  lost  or  destroyed  by" 
was  shipped  on  board  an  unseaworthy  vessel  by  order  of  seaworthy  ves- 
any  officer  authorized  to  give  such  order  or  direct  such 
shipment. 

Third.  Where  it  appears  that  the  loss  or  destruction  of   when  lost  in 

•  •  saving  property 

the  private  property  of  the  claimant  was  in  con  sequence  of  united  states, 
of  his  having  given  his  attention  to  the  saving  of  the  prop- 
erty belonging  to  the  United  States  which  was  in  danger 
at  the  same  time  and  under  similar  circumstances.  And 
the  amount  of  such  loss  so  ascertained  and  determined  shall 
be  paid  out  of  any  money  in  the  Treasury  not  otherwise 
appropriated,  and  shall  be  in  full  for  all  such  loss  or  damage : 
Provided,  That  any  claim  which  shall  be  presented  and  Mar.  3,  isss,  v 
acted  on  under  authority  of  this  act  shall  be  held  as  finally 
determined,  and  shall  never  thereafter  be  reopened  or  con- 
sidered: And  provided  further,  That  this  act  shall  not 
apply  to  losses  sustained  in  time  of  war  or  hostilities  with 
Indians :  And  provided  further,  That  the  liability  of  the 
Government  under  this  act  shall  be  limited  to  such  articles 
of  personal  property  as  the  Secretary  of  War,  in  his  discre- 
tion shall  decide  to  be  reasonable,  useful,  necessary,  and 
proper  for  such  officer  or  soldier  while  in  quarters,  engaged 
in  the  public  service,  in  the  line  of  duty:  And  provided 
further,  That  all  claims  now  existing  fchall  be  presented  years 
within  two  years  and  not  after  from  the  passage  of  this  act; 
and  all  such  claims  hereafter  arising  be  presented  within 
two  years  from  the  occurrence  of  the  loss  or  destruction.1 
Act  of  March  3,  1885  (23  Stat.  L.,  350). 

1  For  private  property  of  officers  or  enlisted  men  lost  or  destroyed  in  the  military 
service,  without  fault  or  negligence  on  the  part  of  the  claimant,  "where  the  private 
property  so  lost  or  destroyed  was  shipped  on  board  an  unseaworthy  vessel  by  order 
of  any  officer  authorized  to  give  such  order  or  direct  such  shipment,"  or  "where  it 
appears  that  the  loss  or  destruction  of  the  private  property  of  the  claimant  was  in 
consequence  of  his  having  given  his  attention  to  the  saving  of  the  property  belong- 
ing to  the  United  StatesVhich  was  in  danger  at  the  same  time  and  under  similar 
circumstances,"  compensation  may  be  made  under  the  provisions  of  the  act  of  Con- 
gress approved  March  3,  1885.  Proceedings  of  a  board  of  survey  will,  if  possible, 
accompany  each  application  under  this  act,  showing  fully  the  circumstances  attending 
the  loss.  '(Par.  723,  A.  11.,  1895.)  See,  also,  2  Compt.  Dec.  644. 


86 


THE   MILITARY   LAW.S   OF   THE   UNITED    STATES. 


THE  TREASURER. 


Par. 

216.  The  Treasurer. 

217.  Duties  of  the  Treasurer. 

218.  Liabilities  outstanding  three 

or  more  years  to  be  deposit- 
ed in  the  Treasury. 

219.  Payment  of    outstanding 

drafts. 

220.  Accounts  of  disbursing  offi- 

cers unchanged  for    three 
years. 

221.  Reports  of  Treasurer,  assist- 

ant treasurers,    etc.,    and 
disbursing  officers. 

222.  The  Treasury  of  the  United 

States. 

223.  Certain  mints  and  assay  offi- 

ces to  be  depositories. 


Par. 

224.  Public    moneys     subject    to 

draft  of  the  Treasurer. 

225.  Superintendents  of  mint  at 

Carson  City  and  assay  office 
at  Boise"  City  to  be  assist- 
ant treasurers. 

226.  Appointment  of  assistant 

treasurers. 

227.  Bonds  of  special  agents. 

228.  Collectors  of  public  moneys 

to  deposit  same  in  Treas- 
ury. 

229.  How  marshals,  district  attor- 

neys, and  other  officers  may 
deposit  money  in  Treasury. 


sept.  2, 1789  c. 

,  8.  4,  V.  1,  p.  DO. 


I^Treastu-er.     216.  There  shall  be  in  the  Department  of  the  Treasury  a 

el1-  jui1  23 1866'  Treasurer  of  the  United  States,  who  shall  be  appointed 

°'  m 8 j2^'  17'  ky  ^e  President,  by  and  with  the  advice  and  consent  of 

1884,  v'.  23,  P. i691.  the  Senate,  and  shall  be  entitled  to  a  salary  of  six  thou- 

sec.  301,  R.  s.  sand  dollars  a  year. 

the  217.  The  Treasurer  shall  receive  and  keep  the  moneys  of 
the  United  States,  and  disburse  the  same  upon  warrants 
drawn  by  the  Secretary  of  the  Treasury,  countersigned  by 
fieC3ini894Cvo°if  tbe  Comptroller,  aud  not  otherwise.  He  shall  take  receipts 
:,  p.  2io.  for  all  moneys  paid  by  him,  and  shall  give  receipts  for  all 
Sec.  305,  B.  s.  moneys  received  by  him;  aud  all  receipts  for  moneys 
received  by  him  shall  be  indorsed  upon  warrants  signed 
by  the  Secretary  of  the  Treasury,  without  which  warrant, 
so  signed,  no  acknowledgment  for  money  received  into 
the  public  Treasury  shall  be  valid.  He  shall  render  his 
accounts  to  the  First  Comptroller  quarterly,  or  oftener  if 
required,  and  shall  transmit  a  copy  thereof,  when  settled, 
to  the  Secretary  of  the  Treasury.  He  shall  at  all  times 
submit  to  the  Secretary  of  the  Treasury  and  the  First 
Comptroller, or  either  of  them,  the  inspection  of  the  moneys 
in  his  hands.1 

218.  At  the  termination  of  each  fiscal  year  all  amounts  of 
moneys  that  are  represented  by  certificates,  drafts,  or 


THa8U2y'i866  c  cnec^si  issued  by  the  Treasurer,  or  by  any  disbursing  offi- 
7°. ««.  1/4,  v.  14,  cer  of  any  Department  of  the  Government,  upon  the  Treas- 
urer or  any  assistant  treasurer,  or  designated  depositary 
'  of  the  United  States,  or  upon  any  national  bank  desig- 
nated as  a  depositary  of  the  United  States,  and  which 


1  So  much  of  this  section  as  required  the  Register  of  the  Treasury  to  record  war- 
rants was  repealed  by  section  11,  of  the  act  of  July  31,  1894.     (28  Stat.  L.,  209.) 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  87 

shall  be  represented  on  the  books  of  either  of  such  offices 
as  standing  to  the  credit  of  any  disbursing  officer,  and 
which  were  issued  to  facilitate  the  payment  of  warrants, 
or  for  any  other  purpose  in  liquidation  of  a  debt  due  from 
the  United  States,  and  which  have  for  three  years  or  more 
remained  outstanding,  unsatisfied,  and  unpaid,  shall  be 
deposited  by  the  Treasurer,  to  be  covered  into  the  Treasury 
by  warrant,  and  to  be  carried  to  the  credit  of  the  parties 
in  whose  favor  such  certificates,  drafts,  or  checks  were 
respectively  issued,  or  to  the  persons  who  are  entitled  to 
receive  pay  therefor,  and  into  an  appropriation  account  to 
be  denominated  "  outstanding  liabilities.'7 

219.  The  payee  or  the  bona-fide  holder  of  any  draft  or    Payment  of 
check  the  amount  of  which  has  been  deposited  and  co v- drafts. al 
ered  into  the  Treasury  pursuant  to  the  preceding  section's,  70,  s.a^v.  14,  p. 42! 
shall,  on  presenting  the  same  to  the  proper  officer  of  the    sec.  sos,  B.  s. 
Treasury,  be  entitled  to  have  it  paid  by  the  settlement  of 

an  account  and  the  issuing  of  a  warrant  in  his  favor, 
according  to  the  practice  in  other  cases  of  authorized  and 
liquidated  claims  against  the  United  States.  Sec.  308,  R.  S. 

220.  The  amounts,  except  such  as  are  provided  for  in    Accounts  of 

,  .  ,,  ••  -I        i  -i       •  /.   ,1  /.  disbursing     offi- 

section  three  hundred  and  six,  of  the  accounts  of  every  cers  unchanged 

kind  of   disbursing  officer,   which  shall  have  remained    May  2,1866,0. 

unchanged,  or  which  shall  not  have  been  increased  by70 

any  new  deposit  thereto,  nor  decreased  by  drafts  drawn    Scc*  309'  R*  s* 

thereon,  for  the  space  of  three  years,  shall  in  like  manner 

be  covered  into  the  Treasury,  to  the  proper  appropriation 

to  which  they  belong;  and  the  amounts  thereof  shall,  on 

the  certificate  of  the  Treasurer  that  such  amount  has  been 

deposited  in  the  Treasury,  be  credited   by  the  proper 

accounting  officer  of  the  Department  of  the  Treasury  on 

the  books  of  the  Department,  to  the  officer  in  whose  name 

it  had  stood  on  the  books  of  any  agency  of  the  Treasury, 

if  it  appears  that  he  is  entitled  to  such  credit. 

221.  The  Treasurer,  each  assistant  treasurer,  and  each    Reports   of 
designated  depositary  of  the  United  States,  and  the  cash-  ant   treasurers, 
ier  of  each  of  the  national   banks  designated   as  such  fng  officers8  u 
depositaries,  shall,  at  the  close  of  business  on  every  thir- 70,8^14??!  42'. 
tieth  day  of  June,  report  to  the  Secretary  of  the  Treasury    sec.  sio*  B.  s. 
the  condition  of  every  account  standing,  as  in  the  pre- 
ceding section  specified,  on  the  books  of  their  respective 

offices,  stating  the  name  of  each  depositor,  with  his  official 
designation,  the  total  amount  remaining  on  deposit  to  his 
credit,  and  the  dates,  respectively,  of  the  last  credit  and 
the  last  debit  made  to  each  account.  And  each  disburs- 
ing officer  shall  make  a  like  return  of  all  checks  issued  by 
him,  and  which  may  then  have  been  outstanding  and 


88  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

unpaid  for  three  years  and  more,  stating  fully  in  such 
report  the  name  of  the  payee,  for  what  purpose  each 
check  was  given,  the  office  on  which  drawn,  the  number 
of  the  voucher  received  therefor,  the  date,  number,  and 
amount  for  which  it  was  drawn,  and,  when  known,  the 
residence  of  the  payee. 

THE  PUBLIC  MONEYS. 
THE  TREASURY,  SUB-TREASURIES  AND  DEPOSITORIES. 

The  Treasury     222.  The  rooms  provided  in  the  Treasury  building  at  the 

states.  seat  of  Government  for  the  use  of  the  Treasurer  of  the 

90,  s!si,  V.  9,'  p!  United  States,  his  assistants,  and  clerks,  and  occupied  by 

Coote  et  ai.  v.  them,  and  the  nr"e-proof  vaults  and  safes  erected  therein 

389.S''  91       S''  for  the  keeping  of  the  public  moneys  in  the  possession  and 

sec.  8591,  B.  s.  under  the  immediate  control  of  the  Treasurer,  and  such 

other  apartments  as  are  provided  as  places  of  deposit  of 

the  public  money,  shall  be  the  Treasury  of  the  United 

States. 

Certain  mints     223.  The  mints  at  Carson  City,  and  at  Denver,  and  the 

and  assay  omces 

to  be  d'eposito-  assay-office  at  Boise  City,  shall  be  places  of  deposit  for  such 
nApr.2i,  1862,  c.  public  moneys  as  the  Secretarv  of  the  Treasury  may  direct. 

59,  s.  5,  v.  12,  p.  J 

333;  Mar.  3,  1863,0.  96,  s.  5,  v.  12,  p.  770;  Feb.  18,  1869,  c.  33,  s.  4.  v.15, 

p.  271  ;  Feb.  12,  1873,  c.  131,  ss.  65,  66,  v.  17,  p.  435.    Sec.  8592,  R.  S. 


public  moneys  paid  into  any  depository  shall  be 
of  the  Treasurer,  subject  to  the  draft  of  the  Treasurer  of  the  United  States, 

Aug.  6,  1846,  c.  J 

90,  s.  i,  v.  9,  p.  59.  drawn  agreeably  to  appropriations  made  by  law. 
superintendents     225.  The  superintendent  of  the  mint  at  Carson  City,  and 
superintendent  of  the  assay-office  at  Boise  City,  shall 
De  assistant  treasurers  of  the  United  States,  and  shall  re- 

.l  -  / 

erMar  3  1863  c  spectively  have  the  custody  and  care  of  all  public  moneys 
wb*'^'rr2iw$>  deposited  therein,  and  shall  perform  all  the  duties  required 
c.5o  s.  5,  v.1  12,  pi  of  them  in  reference  to  the  receipt,  safe-keeping,  transfer, 

383  ;  ^Msir.  3,  1871, 

c.  us,  s.  i,  v.  16,  p.  and  disbursement  of  all  such  moneys,  as  provided  by  law. 

485:  Feb.  18,  1869,  J 

c.  33,  s.  4,  v.15,  p.  271;  Feb.  12,  1873,  c.  131,88.65,  66,  v.  17,  p.  435.    Sec.  3594,  R.S. 

Tnere  sna11  De  assistant  treasurers  of  the  United 


^  States,  appointed  from  time  to  time  by  the  President,  by 


c  2s  ^>ne  advice  and  consent  of  the  Senate,  to  serve  for 

s.  i4,  v.  14,  p.  V;  the  term  of  four  years,  as  follows: 

June  15,  1870,  c.  J 

12,  s.  i,  v.  16,  p.     One  at  Boston. 

152;  Feb.  -12,  1873,        ,.  ,    ,._          __      , 

c.  131,  s.  65,  v.  17,     One  at  New  York. 
?8734,3c.;22^8r5,  v.     One  at  Philadelphia. 

One  at  Baltimore. 
sec.  3595,  B.  s.     Qne  at  ^ew  Orleans  . 

One  at  Saint  Louis. 
One  at  San  Francisco. 
One  at  Cincinnati. 
One  at  Chicago. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


89 


BONDS   OF   SPECIAL   AGENTS. 

227.  Whenever  it  becomes  necessary  for  the  head  of  any  aBeonds of  special 
Department  or  office  to  employ  special  agents,  other  than  Aug. '4, 1854,  c. 
officers  of  the  Army  or  Navy,  who  may  be  charged  with  573'. 8<  14' v>  10' p' 
the  disbursement  of  public  moneys,  such   agents  shall,  sec.seu,  R.  s. 
before  entering  upon  duty,  give  bond  in  such  form  and  with 

such  security  as  the  head  of  the  Department  or  office  em- 
ploying them  may  approve.  Sec.  3614,  R.  S. 

DEPOSIT    OF   PUBLIC   MONEY. 

228.  All  collectors  and  receivers  of  public  money  of  every  plSlJ^o  °er88  Jj 
description,  within  the  District  of  Columbia,  shall,  as  often  ^rSsifr^etc  in 
as  they  may  be  directed  by  the  Secretary  of  the  Treasury  or  90A8"s  ^  i846f>c. 
the  Postmaster-General  so  to  do,  pay  over  to  the  Treasurer  Feb.  12.  isra,  c'. 
of  the  United  States,  at  the  Treasury,  all  public  moneys  435! 8' 
collected  by  them  or  in  their  hands.     All  such  collectors    sec.36is,E.s. 
and  receivers  of  public  moneys  within  the  cities  of  New 

York,  Boston,  Philadelphia,  New  Orleans,  San  Francisco, 
Baltimore,  Charleston,  and  Saint  Louis  shall,  upon  the  same 
direction,  pay  over  to  the  assistant  treasurers  in  their  re- 
spective cities,  at  their  offices,  respectively,  all  the  public 
moneys  collected  by  them,  or  in  their  hands;  to  be  safely 
kept  by  the  respective  depositaries,  until  otherwise  disposed 
of  according  to  law.  It  shall  be  the  duty  of  the  Secretary 
and  Postmaster-General,  respectively,  to  direct  such  pay- 
ments by  the  collectors  and  receivers  at  all  the  said  places, 
at  least  as  often  as  once  in  each  week,  and  as  much  oftener 
as  they  may  think  proper.  (See  sec.  5490,  R.  S.) 

229.  All  marshals,  district  attorneys,  and  other  persons    HOW  marshals, 
than  those  mentioned  in  the  preceding  section,   having 

public  money  to  pay  to  the  United  States,  may  pay  the  same 
to  any  depositary  constituted  by  or  in  pursuance  of  law, 
which  may  be  designated  by  the  Secretary  of  the  Treasury. 
(See  sees.  5504,  5505,  R.  S.} 


i&S!8?! 

in-  v-'  16' 


Sec.  3616,  B.  8. 


GENERAL   DITTIES   OF   DISBURSING   OFFICERS. 


Par. 

230.  Duty  of  disbursing  officers  as 

to  public  money. 

231.  Penalty  for  failure  to  deposit. 

232.  Accounts     to     be     rendered 

monthly. 

233.  Separate  accounts  required. 

234.  Suits  to  recover  money  from 

delinquent  officers. 

235.  Distress  warrants. 

236.  Contents  of  warrant. 


Par. 

237.  Execution  against  officer. 

238.  Execution  against  surety. 

239.  Levy  to  be  a  lien. 

240.  Sale  of  lands. 

241.  Conveyance  of  lands. 

242.  Disposal  of  surplus. 

243.  Penalty  for  failure  of  disburs- 

ing officer  to  account, 

244.  Extent  of  application  of  dis- 

tress warrants. 


90  THE    MILITARY   LAWS   OF   THE   UNITED    STATES. 


Par. 


245.  Postponement  of  proceedings 

for    nonaccounting,    when 
allowed. 

246.  Injunction   to    stay   distress 


251.  Public   moneys    in  Treasury 
and  depositories  subject  to 


247.  Proceedings  on  distress  war- 

rant in  circuit  court. 

248.  Rights  of  United  States  re- 

served. 


Par. 

250.  Transfers    of    moneys    from 

depositaries    to    Treasury, 

etc. 


draft  of  Treasurer. 
252.  Regulations  for  presentation 
of  drafts. 


249.  Duties  of  disbursing  officers 
as  custodians  of  public 
moneys. 

Duty  of  dis-     230.  It  shall  be  the  duty  of  every  disbursing  officer  hav- 
a"r8tog  p^biTc  ing  any  public  money  intrusted  to  him  for  disbursement  to 
mjuenyeu,i8G6,c.  deposit  the  same  with  the  Treasurer  or  some  one  of  the 
64*' Feb.  27,\4877,'  assistant  treasurers  of  the  United  States,  and  to  draw  for 
c.69,v.i9,  p.  249'.  the  same  only  as  it  may  be  required  for  payments  to  be 
Sec. 3620, R. s.  made  by  him  in  pursuance  of  law  [and  draw  for  the  same 
only  in  favor  of  the  persons  to  whom  payment  is  made;]  and 
all  transfers  from  the  Treasurer  of  the  United  States  to  a 
disbursing  officer  shall  be  by  draft  or  warrant  on  the  Treas- 
ury or  an  assistant  treasurer  of  the  United  States.     In 
places,  however,  where  there  is  no  treasurer  or  assistant 
treasurer,  the  Secretary  of  the  Treasury  may,  when  lie 
deems  it  essential  to  the  public  interest,  specially  authorize 
in  writing  the  deposit  of  such  public  money  in  any  other 
public  depository,  or,  in  writing,  authorize  the  same  to  be 
kept  in  any  other  manner,  and  under  such  rules  and  regu- 
lations as  he  may  deem  most  safe  and  effectual  to  facilitate 
the  payments  to  public  creditors.     (See  sec.  54S8,  R.  S.} 
Penalty  for     231.  Every  person  who  shall  have  moneys  of  the  United 
fhM«r!l3j5B&e!  States  in  his  hands  or  possession,  and  disbursing  officers 
in,  s.  s,     11,  p.  having  moneys  in  their  possession  not  required  for  current 
i896°v  29^pai798'  expenditure,  shall  pay  the  same  to  the  Treasurer,  an  Assist- 
Sec  3621  R  s  ant  Treasurer,  or  some  public  depositary  of  the  United 
States,  without  delay,  and  in  all  cases  within  thirty  days  of 
their  receipt.    And  the  Treasurer,  the  Assistant  Treasurer, 
or  the  public  depositary  shall  issue  duplicate  receipts  for 
the  moneys  so  paid,  transmitting  forthwitli  the  original  to 
the  Secretary  of  the  Treasury,  and  delivering  the  duplicate 
to  the  depositor:  Provided,  That  postal  revenue  and  debts 
due  to  the  Post-Office  Department  shall  be  paid  into  the 
Treasury  in  the  manner  now  required  by  law. 

ACCOUNTS.1 

Accounts  to  be     232.  Every  officer  or  agent  of  the  United  States  who 

r6Ducrco.  monto- 

iy.  receives  public  money  which  he  is  not  authorized  to  retain 

1  For  other  statutory  provisions  in  relation  to  accounts,  see  the  titles  "  The  Comp- 
troller of  the  Treasury  "  and  "  The  Auditors  of  the  Treasury"  in  the  chapter  entitled 
THE  TREASURY  DEPARTMENT,  and  the  title  "Disbursing  Officers"  in  the  chapter 
entitled  THE  STAFF  DEPARTMENTS. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  91 


as  salary,  pay,  or  emolument,  shall  render  his  accounts  jgg11^7^8!!  c' 
monthly.  Such  accounts,  with  the  vouchers  necessary  to^£;  Mar.iiswi 
the  correct  and  prompt  settlement  thereof,  shall  be  sent  by  571  ;'  ju'iyisjsTo', 
mail  or  otherwise  to  the  Bureau  to  which  they  pertain  P.  334;  Feb.  2?,' 

1877,  c.  69,  v.  19,  p. 

within  ten  days  after  the  expiration  of  each  successive  249 

month,  and  after  examination  there  shall  be  passed  to  the  31,  iW  'vfVV 

proper  accounting  officer  of  the  Treasury  for  settlement.  20 

Disbursing  officers  of  the  Navy  shall,  however,  render  their    Sec*  3622'  B*  s* 

accounts  and  vouchers  direct  to  the  proper  accounting  offi- 

cer of  the  Treasury.    In  case  of  the  nonreceipt  at  the  Treas- 

ury or  proper  Bureau  of  any  accounts  within  a  reasonable 

and  proper  time  thereafter,  the  officer  whose  accounts  are 

in  default  shall  be  required  to  furnish  satisfactory  evidence 

of  having  complied  with  the  provisions  of  this  section. 

Nothing  herein  contained  shall,  however,  be  construed  to 

restrain  the  heads  of  any  of  the  Departments  from  requiring 

such  other  returns  or  reports  from  the  officer  or  agent,  sub- 

ject to  the  control  of  such  heads  of  Departments,  as  the 

public  interest  may  require.     (See  sec.  5491  ,  R.  8.) 

233.  All  officers,  agents,  or  other  persons  receiving  public  eJ^JfSoiSiwf' 
moneys,  shall  render  distinct  accounts  of  the  application  00Maf  3'01809.'  °' 

*-o,  S.  1,  V.  £i,  p.  t)«>5. 

thereof  according  to  the  appropriation  under  which  the 

S<k<*.  *>bL->,  R,  S« 

same  may  have  been  advanced  to  them. 

SUITS  TO  RECOVER  BALANCES  DUE  THE  UNITED  STATES. 

234.  Whenever  any  person  accountable  for  public  money,    J^^JJSJ'Jjf 
neglects  or  refuses  to  pay  into  the  Treasury  the  sum  or  bal-  Hnquent  officers. 
ance  reported  to  be  due  to  the  United  States  upon  the  20,8.  i,Vi.p.5i2. 
adjustment  of  his  account,  the  First  Comptroller  of  the  sen.'w  wail.,  m 
Treasury  shall  institute  suit  for  the  recovery  of  the  same,    sec.  3624,  B.S. 
adding  to  the  sum  stated  to  be  due  on  such  account  the 
commissions  of  the  delinquent,  which  shall  be  forfeited  in 

every  instance  where  suit  is  commenced  and  judgment  ob- 
tained thereon,  and  an  interest  of  six  per  centum  per  annum 
from  the  time  of  receiving  the  money  until  it  shall  be  repaid 
into  the  Treasury.1 

DISTRESS  WARRANTS. 

235.  Whenever  any  collector  of  the  revenue,  receiver  of  ra^tistress  war" 
public  money,  or  other  officer,  who  has  received  the  public  107Iay  25\?81°'C' 
money  before  it  is  paid  into  the  Treasury  of  the  United  592';  May29,i83o,' 
States,  fails  to  render  his  account,  or  pay  over  the  same  in4i4;  Feb.'  27.18*77, 
the  manner  or  within  the  time  required  by  law,  it  shall  be  si,  isw,  v/28,  p. 
the  duty  of  the  proper  Auditor  to  cause  to  be  stated  the 

Sec.  o625,  R.  S. 

'See,  also,  the  titles  "  The  Comptroller  of  the  Treasury"  and  "  The  Auditors  of  the 
Treasury"  in  the  chapter  entitled  THE  TREASURY  DEPARTMENT,  paragraphs  134-165 
supra. 


92  THE   MILITARY    LAW£    OF   THE    UNITED    STATES. 

account  of  such  officer,  exhibiting  truly  the  amount  due  to 
the  United  States,  and  to  certify  the  same  to  the  Solicitor 
of  the  Treasury,  who  shall  issue  a  warrant  of  distress 
against  the  delinquent  officer  and  his  sureties  directed  to 
the  marshal  of  the  district  in  which  such  officer  and  his 
sureties  reside.  Where  the  officer  and  his  sureties  reside 
in  different  districts,  or  where  they  or  either  of  them  reside 
in  a  district  other  than  that  in  which  the  estate  of  either 
may  be,  which  it  is  intended  to  take  and  sell,  then  such 
warrant  shall  be  directed  to  the  marshals  of  such  districts, 
respectively.1 

contents  of  236.  The  warrant  of  distress  shall  specify  the  amount 
with  which  such  delinquent  is  chargeable  and  the  sums,  if 

Sec.  3626,  R.S. 

any,  which  have  been  paid. 
Execution     237.  The  marshal  authorized  to  execute  any  warrant  of 

against  officer.  J 

i()May  i5,^i82o,  c  distress  shall,  by  himself  or  by  his  deputy,  proceed  to  levy 
593'.  and  collect  the  sum  remaining  due,  by  distress  and  sale  of 

sec.8627,B.s.  the  goods  and  chattels  of  such  delinquent  officer,  having 
given  ten  days'  previous  notice  of  such  intended  sale,  by 
affixing  an  advertisement  of  the  articles  to  be  sold  at  two 
or  more  public  places  in  the  town  and  county  where  the 
goods  or  chattels  were  taken,  or  in  the  town  or  county 
where  the  owner  of  such  goods  or  chattels  may  reside.  If 
the  goods  and  chattels  be  not  sufficient  to  satisfy  the  war- 
rant, the  same  may  be  levied  upon  the  person  of  such  offi- 
cer, who  may  be  committed  to  prison,  there  to  remain  until 
discharged  by  due  course  of  law. 

^e  delinquent  officer  absconds,  or  if  goods  and 


May  15,  1820,'c.  chattels  belonging  to  him  can  not  be  found  sufficient  to 

593!  8<  P'  satisfy  the  warrant,  the  marshal  or  his  deputy  shall  proceed, 

sec.  8628,  R.S.  notwithstanding  the  commitment  of  the  delinquent  officer, 

to  levy  and  collect  the  sum  which  remains  due  by  such 

delinquent,  by  the  distress  and  sale  of  the  goods  and  chat- 

tels of  his  sureties;  having  given  ten  days'  previous  notice 

of  such  intended  sale,  by  affixing  an  advertisement  of  the 

articles  to  be  sold  at  two  or  more  public  places  in  the  town 

or  county  where  the  goods  or  chattels  were  taken,  or  in  the 

town  or  county  where  the  owner  resides. 

iie^evy  to  be  a     239t  Tlie  amount  due  by  any  delinquent  officer  is  de- 

lo^lf  25V183°'  c'  C^are(i  to  be  a  lien  upon  the  lands,  tenements,  and  heredit- 

593-  aments  of  such  officer  and  his  sureties,  from  the  date  of  a 

sec.  3629,  R.S.  levy  in  pursuance  of  the  warrant  of  distress  issued  against 

'For  other  statutory  provisions  in  relation  to  accounts,  see  the  titles  "  The  Comp- 
troller of  the  Treasury"  and  "  The  Auditors  of  the  Treasury  "  in  the  chapter  entitled 
THE  TREASURY  DEPARTMENT,  and  the  title  "Disbursing  Officers"  in  the  chapter 
entitled  THE  STAFF  DEPARTMENTS.  See  also  U.  S.  v.  Kirkpatrick,  9  Wh.,  720;  U.S. 
v.  VanZandt,  11  Wh.,  184;  U.  S.  v.  Nicholl,  12  Wh.,  505;  Dox  v.  Postmaster-General. 
1  Pet.,  325;  U.  S.v.  Nourse,  9  Pet.,  8;  Cary  v.  Curtis,  3  How.,  246;  Murray's  Lessee 
v.  Hoboken  Co.,  18  How.,  272;  U.  S.  v.  Maurice,  2  13rock.,  96;  Ex  parte  Randolph,  2 
Brock.,  447;  Armstrong  v.  U.  S.,  Gilp.,  399. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  93 

him  or  them,  and  a  record  thereof  made  in  the  office  of  the 
clerk  of  the  district  court  of  the  proper  district,  until  the 
same  is  discharged  according  to  law. 

240.  For  want  of  goods  and  chattels  of  a  delinquent  offi-    sale  of  lands, 
cer,  or  his  sureties,  sufficient  to  satisfy  any  warrant  of  107,?  2%.  3,' p! 
distress  issued  pursuant  to  the  foregoing  provisions,  the 

lands,  tenements,  and  hereditaments  of  such  officer  and  his  >ec*  3630>  B-s> 
sureties,  or  so  much  thereof  as  may  be  necessary  for  that 
purpose,  after  being  advertised  for  at  least  three  weeks  in 
not  less  than  three  public  places  in  the  county  or  district 
where  such  real  estate  is  situate,  before  the  time  of  sale, 
shall  be  sold  by  the  marshal  of  such  district  or  his  deputy. 

241.  For  all  lands,  tenements,  or  hereditaments  sold  in    Conveyance  of 

lands. 

pursuance  of  the  preceding  section,  the  conveyance  of  the  MM. 

marshal  or  his  deputy,  executed  in  due  form  of  law,  shall  Sec.  363i,n.s. 
give  a  valid  title  against  all  persons  claiming  under  such 
delinquent  officer  or  his  sureties. 

242.  All  moneys  which  may  remain  of  the  proceeds  of  Disposal  of  Bur- 
sales,  after  satisfying  the  warrant  of  distress,  and  paying  ibid. 

the  reasonable  costs  and  charges  of  the  sale,  shall  be  re-  sec,  3632,  B.S. 
turned  to  such  delinquent  officer  or  surety,  as  the  case 
may  be. 

243.  Whenever  any  officer  employed  in  the  civil,  military.  Penalty  for  fail- 

,    *'  ure  of  disbursing 

or  naval  service  of  the  Government,  to  disburse  the  public  officer   to  ac- 
money  appropriated  for  those  branches  of  the  public  serv-  °Mnay  15, 1320,  o. 

,•       -i        r>    -i  11-  107,  8.  3.  v.  3,  p. 

ice.  respectively,  iails  to  render  his  accounts,  or  to  pay  over,  594 ;  May    29, 


in  the  manner  and  in  the  times  required  by  law,  or  by 

regulations  of  the  Department  to  which  he  is  accountable,  28ip°2ob.! 

any  sum  of  money  remaining  in  his  hands,  it  shall  be  the    sec.  3633,  B.S. 

duty  of  the  proper  Auditor,  as  the  case  may  be,  who  shall 

be  charged  with  the  revision  of  the  accounts  of  such  officer, 

to  cause  to  be  stated  and  certified  the  account  of  such 

delinquent  officer  to  the  Solicitor  of  the  Treasury,  who  is 

hereby  authorized   and  required  immediately  to  proceed 

against  such  delinquent  officer,  in  the  manner  directed  in 

the  six  preceding  sections. 

244.  All  the  provisions  relating  to  the  issuing  of  a  war-    Extent  of  ap- 
rant  of  distress  against  a  delinquent  officer  shall  extend  to  treat  warrants!8 
every  officer  of  the  Government  charged  with  the  disburse- 107,  al^  V.  3,'p! 
ment  of  the  public  money,  and  to  their  sureties,  in  the  same    gec  36g4  ^ 
manner  and  to  the  same  extent  as  if  they  were  herein 
described  and  enumerated. 

245.  With  the  approval  of  the  Secretary  of  the  Treasury,    Postponement 
the  institution  of  proceedings  by  a  warrant  of  distress  may  for  nma^coun? 
be  postponed,  for  a  reasonable  time,  in  cases  where,  in  his  lowedw 
opinion,  the  public  interest  will  sustain  no  injury  by  such  lo^Y  sf'v8!!'?.' 
postponement.  59sec.  seas,  B.S. 


94  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


ds  t?e  as  ^^'  ^n^  Person  who  considers  himself  aggrieved  by  any 
WMaa"i5  1820  c  warran^  °f  Distress  issued  under  the  foregoing  provisions 
107,  ss.  4,  5,  v.  3,  p.  may  prefer  a  bill  of  complaint  to  any  district  judge  of  the 
United  States,  setting  forth  therein  the  nature  and  extent 
'of  the  injury  of  which  he  complains;  and  thereupon  the 
judge  may  grant  an  injunction  to  stay  proceedings  on  such 
warrant  altogether,  or  for  so  much  thereof  as  the  nature  of 
the  case  requires.  But  no  injunction  shall  issue  till  the 
party  applying  for  it  gives  bond,  with  sufficient  security, 
in  a  sum  to  be  prescribed  by  the  judge,  for  the  performance 
of  such  judgment  as  may  be  awarded  against  him;  nor 
shall  the  issuing  of  such  injunction  in  any  manner  impair 
the  lien  produced  by  the  issuing  of  the  warrant.  And  the 
same  proceedings  shall  be  had  on  such  injunction  as  in 
other  cases,  except  that  no  answer  shall  be  necessary  on 
the  part  of  the  United  States,  and  if,  upon  dissolving  the 
injunction,  it  appears  to  the  satisfaction  of  the  judge  that 
the  application  for  the  injunction  was  merely  for  delay,  the 
judge  may  add  to  the  lawful  interest  assessed  on  all  sums 
found  due  against  the  complainant  such  damages  as,  with 
such  lawful  interest,  shall  not  exceed  the  rate  of  ten  per 
centum  a  year.  Such,  injunction  may  be  granted  or  dis- 
solved by  the  district  judge  either  in  or  out  of  court. 
Proceedings  on  247.  When  the  district  judge  refuses  to  grant  an  injuuc- 

distress  warrant  J 

in  circuit  court,  tion  to  stay  proceedings  on  a  distress-warrant,  as  aforesaid, 

May  15,  1820,  c. 

107,^88.  4,  G,  v.  3,  or  dissolves  such  injunction  after  it  is  granted,  any  person 
?869,  c.  22,%.  2,  who  considers  himself  aggrieved  by  the  decision  in  the 
premises  may  lay  before  the  circuit  justice,  or  circuit  judge 
'  of  the  circuit  within  which  such  district  lies,  a  copy  of  the 
proceeding  had  before  the  district  judge;  and  thereupon 
the  circuit  justice  or  circuit  judge  may  grant  an  injunction, 
or  permit  an  appeal,  as  the  case  may  be,  if,  in  his  opinion, 
the  equity  of  the  case  requires  it.  The  same  proceedings, 
subject  to  the  same  conditions,  shall  be  had  upon  such 
injunction  in  the  circuit  court  as  are  prescribed  in  the  dis- 
trict court. 

uSteS  statls  re     '248.  Nothing  contained  in  the  provisions  of  this  title 

8eMad'i5  1820  c  rela^n8'  ^°  distress-warrants  shall  be  construed  to  take 

io7,  s.  o,  V.  3,  V  away  or  impair  any  right  or  remedy  which  the  United  States 

might  have,  by  law,  for  the  recovery  of  taxes,  debts,  or 

Sec.  3638,  R.S.   _  J  J 

demands. 
Duties  of  dis      249.  The  Treasurer  of  the  United  States,  all  assistant 

cursing    orncers  «  ' 

as  custodians  of  treasurers,  and  those  performing  the  duties  of  assistant 

public  moneys. 

Aug.  e,  1846,  c.  treasurer,  all  collectors  of  the  customs,  all  surveyors  of  the 
Mar.'  3,v'i857;  c!  customs,  acting  also  as  collectors,  all  receivers  of  public 

114,  s.  2,  v.  11,  p. 

249;  July  3,1852,  c.  54,  8.7,  v.  10,  p.  12;   Mar.  3,  1863,  c.  96,  s.  5,  v.  12,  p.  770;  July  4,  1864,  c.  24.  s.5, 

v,13,p.  383;  Apr.  21,1862,  c.  59,  8.  5,  v.  12,  p.  382;  Feb.  18,  1869,  c.  33,  8.4,  v.  15,  p.  271.    Sec.  3639,  B.  S, 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  95 

moneys  at  the  several  land-offices,  all  postmasters,  and  all 
public  officers  of  whatsoever  character,  are  required  to 
keep  safely,  without  loaning,  using,  depositing  in  banks,  or 
exchanging  for  other  funds  than  as  specially  allowed  by 
law,  all  the  public  money  collected  by  them,  or  otherwise 
at  any  time  placed  in  their  possession  and  custody,  till  the 
same  is  ordered,  by  the  proper  Department  or  officer  of 
the  Government,  to  be  transferred  or  paid  out;  and  when 
such  orders  for  transfer  or  payment  are  received,  faithfully 
and  promptly  to  make  the  same  as  directed,  and  to  do  and 
perform  all  other  duties  as  fiscal  agents  of  the  Government 
which  may  be  imposed  by  any  law,  or  by  any  regulation  of 
the  Treasury  Department  made  in  conformity  to  law.  The 
President  is  authorized,  if  in  his  opinion  the  interest  of  the 
United  States  requires  the  same,  to  regulate  and  increase 
the  sums  for  which  bonds  are,  or  may  be,  required  by  law, 
of  all  district  attorneys,  collectors  of  customs,  naval  offi- 
cers, and  surveyors  of  customs,  navy  agents,  receivers  and 
registers  of  public  lands,  paymasters  in  the  Army,  com- 
missary-general, and  by  all  other  officers  employed  in  the 
disbursement  of  the  public  moneys,  under  the  direction  of 
the  War  or  Navy  Departments.  (See  sees.  5489-5497  ,  R.  8.) 

TRANSFERS   OF    FUNDS   BY   THE    SECRETARY   OF   THE 
TREASURY. 

250.  The  Secretary  of  the  Treasury  may,  except  as  pro-    Transfers  of 

*..  L     ,     moneys  from  de- 

vided  in  the  next  section,  transfer  the  moneys  in  the  hands  positarioa  to 
of  any  depositary  of  public  moneys  to  the  Treasury  of  the  rAugUr<Ti846,  c. 
United  States  to  the  credit  of  the  Treasurer;  and  he  may  90'  8t  10)  v>  9l  p  '6L 
transfer  moneys  in  the  hands  of  one  depositary  to  any  other  Sec>  86*°'  K*  s< 
depositary,  as  the  safety  of  the  public  moneys  and  the  con- 
venience of  the  public  service  shall  seem  to  him  to  require. 

251.  All  moneys  paid  into  the  Treasury  of  the  United    Public  moneys 
States  shall  be  subject  to  the  draft  of  the  Treasurer.     And  <Tepos?Sea  sab- 
for  the  purpose  of  payments  on  the  public  account  ^ 


Treasurer  is  authorized  to  draw  upon  any  of  the  deposi-  90^uf0  ^  98J66i! 
taries,  as  he  may  think  most  conducive  to  the  public  inter-    Sec  g644  B  s 
est  and  to  the  convenience  of  the  public  creditors.    Each 
depositary  so  drawn  upon  shall  make  returns  to  the  Treas- 
ury and  Post-Office  Departments  of  all  moneys  received 
and  paid  by  him,  at  such  times  and  in  such  forms  as  shall 
be  directed  by  the  Secretary  of  the  Treasury  or  the  Post- 
master-General. 

PRESENTATION  OF    DRAFTS. 

252.  It  shall  be  the  duty  of  the  Secretary  of  the  Treasury  fo 
to  issue  and  publish  regulations  to  enforce  the  speedy  pres-  Oij{[jjft8831 
entation  of  all  Government  drafts,  for  payment,  at  the   sec.  3645,' 
place  where  payable,  and  to  prescribe  the  time,  according 
to  the  different  distances  of  the  depositaries  from  the  seat 


96 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


of  Government,  within  which  all  drafts  upon  them,  respec- 
tively, shall  be  presented  for  payment;  and,  in  default  of 
such  presentation,  to  direct  any  other  mode  and  place  of 
payment  which  he  may  deem  proper;  but,  in  all  these  regu- 
lations and  directions,  it  shall  be  his  duty  to  guard,  as  far 
as  may  be,  against  those  drafts  being  used  or  thrown  into 
circulation  as  a  paper  currency  or  a  medium  of  exchange. 
(See  sees.  5495,  5496,  R.  S.) 

DISBURSING   AGENTS. 


Par. 

253.  Expenses  of  fiscal  agents. 

254.  Collectors  to  act  as  disbursing 

agents. 


Par. 


255.  Special  disbursing  agents. 

256.  CoDipeusation  of  certain  dis- 

bursing agents. 


Expenses    of     253.  The  officers,  respectively,  whose  duty  it  is  made  by 

fiscal  agents.  * 

Aug.  e,  1846,  c  this  Title  to  receive,  keep,  or  disburse  the  public  moneys, 
J  '  as  the  fiscal  agents  of  the  Government,  may  be  allowed  any 

*ec'8663'B'8*  necessary  additional  expenses  for  clerks,  fire-proof  chests 
or  vaults,  or  other  necessary  expenses  of  safe  keeping,  trans- 
ferring, or  disbursing  the  moneys;  but  all  such  expenses  of 
every  character  shall  be  first  expressly  authorized  by  the 
Secretary  of  the  Treasury,  whose  directions  upon  all  the 
above  subjects,  by  way  of  regulation  and  otherwise,  so  far 
as  authorized  by  law,  shall  be  strictly  followed  by  all  the 
officers.1 

collectors    to     254.  The  collectors  of  customs  in  the  several  collection 

act  as  disbursing  . 

agents.  districts  are  required  to  act  as  disbursing  agents  for  the 

i54,"ni7,  v.  11,  £  payment  of  all  moneys  that  are  or  may  hereafter  be  appro- 

priated for  the  construction  of  custom-houses,  court-houses, 

sec.  3657,  B.s.  post-offices,  and  marine  hospitals;  with  such  compensation, 

not  exceeding  one  quarter  of  one  per  centum,  as  the  Secre- 

tary of  the  Treasury  may  deem  equitable  and  just.     (See 

sec.  255.} 

Special  dis      255.  Where  there  is  no  collector  at  the  place  of  location 

irSing  Rff6DtS. 

July  28,  1866,  c.  of  any  public  work  specified  in  the  preceding  section,  the 


we.  3658,  R.  s. 


Secretary  of  the  Treasury  may  appoint  a  disbursing  agent 
for  ^e  paymentj  of  all  moneys  appropriated  for  the  con- 
struction of  any  such  public  work,  with  such  compensation 
as  he  may  deem  equitable  and  just 

^®'  ^nv  disbursing  agent  who  has  been   or  may  be 
bUAuing7af882t8v  aPP°iuted-  t°  disburse  any  appropriation  for  any  United 
22,  p.  aoe!         'States  court-house  and   post  office,  or  other  building  or 
grounds,  not  located  within  the  city  of  Washington,  shall 
be  entitled  to  the  compensation  allowed  by  law  to  collectors 
of  customs  for  such  amounts  as  have  been  or  may  be  dis- 
bursed.    Act  of  August  7,  1882  (22  Stat.  L.,  306). 

1  An  officer  charged  with  the  duty  of  safely  keeping  and  paying  over  public  money 
is  not  relieved  from  liability  although  it  is  destroyed  by  fire  whil 
and  without  negligence  on  his  part.    (1  Compt.  Dec.,  191.) 


fire  while  in  his  possession 


CHAPTER    VI. 


THE   POST-OFFICE   DEPARTMENT. 


Par. 

257.  Establishment  of   the   Post- 

Office  Department. 

258.  Oath  of  office. 

259.  Oath,  before  whom  taken. 

260.  Classes  of  mail  matter.    First 

class. 

261.  Rates  of  postage.     Soldiers' 

letters. 

262.  Special-delivery  stamps. 

263.  Specially  stamped  letters  to 

be  delivered. 

264.  Letters  on   official    business 

may  be  sent  free.  Penalty 
for  using  official  envelopes 
to  avoid  payment  of  post- 
age. 


Par. 

265.  Official  envelopes  to  be  pro- 

vided.    How  franked. 

266.  Senators,  members,  etc.,  may 

send  documents  free. 

267.  Extension  of  franking  privi- 

lege.  Official  mail  of 
Smithsonian  Institu  t  i  o  n  . 
Return  penalty  envelopes. 
Mail  matter  of  Executive 
Departments,  etc.,  may  be 
registered  free. 

268.  Postmaster-General    to    con- 

tract for  all  envelopes  for 
Executive  Departments. 


257.  There  shall  be  at  the  seat  of  Government  an  Exec-    Establishment 
utive  Department  to  be  known  as  the  Post-Office  Depart-  Department, 
merit,  and  a  Postmaster-General,  who  shall  be  the  head  's^^ijp?^?'; 


287. 
Sec.  391,  R.  S. 


thereof,  and  who  shall  be  appointed  by  the  President, 

and  with  the  advice  and  consent  of  the  Senate,  and  whop<283- 

may  be  removed  in  the  same  manner;  and  the  term  of  the    Sec'  358'  R*  8< 

Postmaster-General  shall  be  for  and  during  the  term  of  the 

President  by  whom  he  is  appointed,  and  for  one  month 

thereafter,  unless  sooner  removed. 

258.  Before  entering  upon  the  duties  of  his  office  and  oath  of  office, 
before  he  shall  receive  any  salary  the  Postmaster-General  335,  s.  is'.v.nip. 
and  each  of  the  persons  employed  in  the  postal  service  shall 
respectively  take  and  subscribe  before  some  magistrate  or 
other  competent  officer  the  following  oath:  "I,  A.  B.,  do 
solemnly  swear  (or  affirm)  that  I  will  faithfully  perform  all 
the  duties  required  of  me,  and  abstain  from  everything  for- 
bidden by  the  laws  in  relation  to  the  establishment  of  post- 
offices  and  post-roads  within  the  United  States  5  and  that 
I  will  honestly  and  truly  account  for  and  pay  over  any 
money  belonging  to  the  said  United  States  which  may  come 
into  my  possession  or  control;  and  I  also  further  swear  that 
1919 7  97 


98  THE    MILITARY    LAWS   OF    THE    UNITED    STATES. 

I  will  support  the  Constitution  of  the  United  States;  so 
help  me  God."    Act  of  March  5,  1874  (18  Stat.  L.,  19}. 
whom  takenf°re     ^59.  Any  officer,  civil  or  military,  holding  a  commission 
335Usnei51v8i7'i^under  tne  lcrnited  States  is  authorized  to  administer  and 
s87'  certify  the  oath  prescribed  by  the  preceding  section. 

Sec.  392,  R.  S. 

CLASSIFICATION   OF   MAIL  MATTER. 

matter868 °fmail     260<  Tnat   mailaole   matter   shall  be  divided  into  four 

Mar.  3,  1879,  s.  pi  o  capo  • 
7,  v.  20,  p.  358. 

First,  written  matter; 
Second,  periodical  publications; 
Third,  miscellaneous  printed  matter; 
Fourth,  merchandise. 

First  class.  Mailable  matter  of  the  first  class  shall  embrace  letters, 
postal  cards,  and  all  matters  wholly  or  partly  in  writing, 
except  as  hereinafter  provided.1 

RATES  OF  LETTER  POSTAGE. 

Kates  of  post  2QI.  That  on  mailable  matter  of  the  first  class,  except 
voi  23  3's861885'  Postal  cards  and  drop  letters,  postage  shall  be  prepaid  at 
the  rate  of  two  cents  for  each  ounce  or  fraction  thereof; 
postal  cards  shall  be  transmitted  through  the  mails  at  a 
postage  charge  of  one  cent  each,  including  the  cost  of 
manufacture;  and  drop  letters  shall  be  mailed  at  the  rate 
of  two  cents  per  ounce  or  fraction  thereof,  including  deliv- 
ery at  letter  carrier  offices,  and  one  cent  for  each  ounce  or 
fraction  thereof  where  free  delivery  by  carrier  is  not  estab- 
tefs°ldl<  i  lished.  The  Postmaster  General  may,  however,  provide,  by 
regulation,  for  transmitting  unpaid  and  duly  certified  let- 
ters of  soldiers,  sailors,  and  marines  in  the  service  of  the 
United  States  to  their  destination,  to  be  paid  on  delivery.2 
Act  of  March  3, 1885  (23  Stat.  L.,  386}. 

SPECIAL   DELIVERY. 

erypstamp8.eliv  262-  That  a  special  stamp  of  the  face  valuation  of  ten 
isss °"voi  M23r'  p  cents  mav  be  provided  and  issued,  whenever  deemed  advis- 
able or  expedient,  in  such  form  and  bearing  such  device 
as  may  meet  the  approval  of  the  Postmaster-General, 
which,  when  attached  to  a  lettter,  in  addition  to  the  lawful 
postage  thereon,  the  delivery  of  which  is  to  be  at  a  free 
delivery  office,  or  at  any  city,  town,  or  village  containing 
a  population  of  four  thousand  or  over,  according  to  the 
Federal  census,  shall  be  regarded  as  entitling  such  letter 
to  immediate  delivery  within  the  carrier  limit  of  any  free 

1  For  description  of  matter  embraced  in  the  second,  third,  and  fourth  classes  see 
the  act  of  March  3,  1879  (20  Stat.  L.,  358). 

2  Amended  as  noted  by  the  act  of  March  3, 1885  (23  Stat.  L.,  386). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  99 

delivery  office  which  may  be  designated  by  the  Postmaster- 
General  as  a  special  delivery  office,  or  within  one  mile  of  the 
post  office  at  any  other  office  coming  within  the  provisions 
of  this  section  which  may  in  like  manner  be  designated  as 
a  special  delivery  office.  Sec.  3,  act  of  March  5,  1885  (23 
Stat.  L.,  386). 

263.  That  such  specially  stamped  letters  shall  be  deliv-  8t!fmydc  \*^£ 
ered  from  seven  o'clock  ante  meridian  up  to  twelve  o'clock  t('s^cd4el 
midnight  at  offices  designated  by  the  Postmaster-General 

under  section  three  of  this  act.     Sec.  4,  ibid. 

OFFICIAL   LETTERS. 

264.  That  it  shall  be  lawful  to  transmit  through  the  mail,  ^ 

free  of  postage,  any  letters,  packages,  or  other  matters  re-  may  be  sent  free. 

lating  exclusively  to  the  business  of  the  Government  of 

the  United  States:   Provided,  That  every  such  letter  or    sec.  5  Mar  3, 

package  to  entitle  it  to  pass  free  shall  bear  over  the  words  1879  '  19'  p  355 

"Official  business"  an  endorsement  showing  also  the  name 

of  the  Department,  and,  if  from  a  bureau  or  office,  the 

names  of  the  Department  and  bureau  or  office,  as  the  case 

for  us 


may  be,  whence  transmitted.    And  if  any  person  shall  make  .  I'enaiiy 

J  ingoflicialenvel. 

use  of  any  such  official  envelope  to  avoid  the  payment  of  <>pea  to  avoid 

payment  of  post- 

postage  on  his  private  letter,  package,  or  other  matter  mage. 
the  mail,  the  person  so  offending  shall  be  deemed  guilty  of 
a  misdemeanor,  and  subject  to  a  fine  of  three  hundred  dol 
lars,to  be  prosecuted  in  any  court  of  competent  jurisdiction.1 
Sec.  5,  act  of  March  5,  1879  (19  Stat.  L.,  355}. 

265.  That  for  the  purpose  of  carrying  this  act  into  effect,  0™*^  b®npjj. 
it  shall  be  the  duty  of  each  of  the  Executive  Departments  vigwl  . 

Sec.  G,  ibid 

of  the  United  States  to  provide  for  itself  and  its  subordi 
nate  offices  the  necessary  envelopes;  and  in  addition  to  the 
endorsement  designating  the  Department  in  which  they  are    indorsement 
to  be  used  the  penalty  for  the  unlawful  use  of  these  envel- 
opes shall  be  stated  thereon.     Sec.  6,  ibid. 

266.  That  Senators,  Representatives,  and  Delegates  in  be^na^j)c!'s  ™e™; 
Congress,  the  Secretary  of  the  Senate,  and  Clerk  of  the8,en(l  documents 
House  of  Representatives,  may  send  and  receive  through    Sec  i  ibid. 
the  mail,  all  public  documents  printed  by  order  of  Con 

gress2;   and  the  name  of  each  Senator,  Representative,    flow  franked. 
Delegate,  Secretary  of  the  Senate,  and  Clerk  of  the  House 
shall  be  written  thereon,  with  the  proper  de  ignation  of 
the  office  he  holds  ;  and  the  provisions  of  this  section  shall 
apply  to  each  of  the  persons  named  therein  until  the  first 

'For  regulations  respecting  the  use  of  penalty  envelopes  in  the  transmission  of 
official  correspondence,  see  paragraphs  813-817  Army  Regulations  of  1895.  These 
envelopes  are  for  use  in  domestic  correspondance  only,  and  will  not  cover  the  trans- 
portation of  letters  to  foreign  countries  upon  which  postage  stamps  must  be  used. 

2Extended  to  letters  addressed,  officially,  to  any  officer  of  the  Government  by  sec- 
tion 3,  act  of  March  3,  1891  (26  Stat.  L.,  1081), 


100  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

day  of  December  following  the  expiration  of  their  respec- 
tive terms  of  office.     Sec.  7,  ibid. 

sec  3,  July  5,     267   The  provisions  of  the  fifth  and  sixth  sections  of  the 
Extension  of  act  entitled  aAn  act  establishing  post-routes,  and  for  other 
iege. 1U          1  purposes"  approved  March  third,  eighteen  hundred  and 
seventy-seven,  for  the  transmission  of  official  mail  matter, 
be,  and  they  are  hereby,  extended  to  all  officers  of  the 
United  States  Government,  not  including  members  of  Con- 
gress, the  envelopes  of  such  matter  m  all  cases  to  bear 
appropriate  indorsements  containing  the  proper  designa- 
tion of  the  office  from  which  or  officer  from  whom  the  same 
is  transmitted,  with  a  statement  of  the  penalty  for  their 
misuse.    And  the  provisions  of  said  fifth  and  sixth  sections 
are  hereby  likewise  extended  and  made  applicable  to  all 
maSof  smith  official  mail-matter  ot   the  Smithsonian  Institution :  Pro- 
ti°onan   Institu  vided,  That  any  Department  or  officer  authorized  to  use 
Return  penalty  ^he  penalty  envelopes  may  inclose  them  with  return  address 

envelopes.  J 

to  any  person  or  persons  from  or  through  whom  official 

information  is  desired,  the  same  to  be  used  only  to  cover 

such  official  information,  and  indorsements  relating  thereto : 

E™™™™*^  Provided  further,  That  any  letter  or  packet  to  be  regis- 

partments,  etc.,  tered  by  either  of  the  Executive  Departments,  or  Bureaus 

may    be    regis- 
tered free  thereof,  or    by  the  Agricultural    Department,  or   by  the 

Public  Printer,  may  be  registered  without  the  payment  of 
any  registry  fee;  and  any  part-paid  letter  or  packet  ad- 
dressed to  either  of  said  Departments  or  Bureaus  may  be 
delivered  free;  but  where  there  is  good  reason  to  believe 
the  omission  to  prepay  the  full  postage  thereon  was  inten- 
tional, such  letter  or  packet  shall  be  returned  to  the 
sender:  Provided  further,  That  this  act  shall  not  extend 
or  apply  to  pension  agents  or  other  officers  who  receive  a 
fixed  allowance  as  compensation  for  their  services,  includ 
ing  expenses  of  postages.  And  section  thirty  nine  hun 
dred  and  fifteen  of  the  Revised  Statutes  of  the  United 
States,  so  far  as  the  same  relates  to  stamps  and  stamped 
envelopes  for  official  purposes,  is  hereby  repealed.  Pec.  39 
act  of  July  5,  1884  (23  Stat.  L.,  158). 

PURCHASE  OF  ENVELOPES  FOR  USE  OF  THE  EXECUTIVE 
DEPARTMENTS. 

postmaster      268.  The  Postmaster-General  shall  contract  for  all  envel- 
tractrfor  ^u^n  opes,  stamped  or  otherwise,  designed  for  sale  to  the  public, 
ecmive  Depart  or  f°r  use  Dv  D1S  owu  or  other  Departments,  and  may  con 
m|ecS96  jan  12  tract  for  them  to  be  plain  or  with  such  printed  matter  as 
1895,  v  28, p  624'  may  be  prescribed  by  the  Department  making  requisition 
therefor:    Provided,    That  no  envelope  furnished   by  the 
Government  shall  contain  any  business  address  or  adver- 
tisement.    Sec.  96,  act  of  January  12, 1895  (28  Stat.  L.,  624}. 


CHAPTER  VII. 


THE   DEPARTMENT  OF  JUSTICE-HABEAS  COR- 
PUS—THE COURT  OF  CLAIMS. 

THE   DEPARTMENT    OF    JUSTICE. 


Par. 

269.  Establishment  of  Department 

of  Justice. 

270.  Solicitor-General. 

271.  Duties  of  Attorney-General, 

272.  Title  to  laud  to  be  purchased 

by  the  United  States. 

273.  Opinion  of  Attorney-General 

upon  questions  of  law. 

274.  Legal  advice  to  Departments 

of  War  and  Navy. 

275.  Reference  of  questions  by  At- 

torney-General to  subordi 
nates. 


Par. 

276.  Conduct    and    argument    of 

cases. 

277.  Performance  of  duty  by  offi- 

cers of  Department  of  Jus- 
tice. 

278.  Officers  of  the  Department  to 

perform  all  legal  services 
required  for  other  Depart- 
ments. 

279.  Attendance  of  counsel 

280.  Interest  of  United  States  in 

pending    suits,    who    may 
attend  to 
281    Publication  of  opinions. 


269.  There  shall  be  at  the  seat  of  Government  an  Execu- 
tive Department  to  be  known  as  the  Department  of  Jus- 
tice, and    an  Attorney-General,  who   shall  be  the   head 
thereof.  Juno 22,  ISTO  c  150.  s  i.v  ie,  p.  162. 

270.  There  shall  be  in  the  Department  of  Justice  an  offi 
cer  learned  in  the  law,  to  assist  the  Attorney-General  in 
the  performance  of  his  duties,  called  the  Solicitor-General, 
who  shall  be  appointed  by  the  President,  by  and  with  the 
advice  and  consent  of  the  Senate,  and  shall  be  entitled  to 
a  salary  of  seven  thousand  dollars  a  year.    In  case  of  a 
vacancy  in  the  office  of  Attorney -General,  or  of  his  absence 
or  disability,  the  Solicitor  General  shall  have  power  to  exer- 
cise all  the  duties  of  that  office. 

101 


Establiahment 
of  Department  of 
Justice. 

Sept  24, 1789,  c. 
20,  s  35  v  in  92; 

Sec.  340,  R.  S. 

Solicitor  Gen 
erai. 

June 22, 1870  c 
150  s  2,v  16  p. 
162,  July  7  1884, 
v  23.  p  192. 

Sec.  347,  R.  S. 


102  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

be^^hal^by     271t  ^°  Public  money  shall  be  expended  upon  any  site 
tbeUnited  states,  or  land  purchased  by  the  United  States  for  the  purposes 
Res.  JSTo.6,'v.5.  p.  of  erecting  thereon  any  armory,  arsenal,  fort,  fortification, 
navy-yard,  custom-house,  light-house,  or  other  public  build- 
»ec.355,  R.  s-lng?  of  any  kiu(j  wnatever,  until  the  written  opinion  of  the 
Attorney-General  shall  be  had  in  favor  of  the  validity  of 
the  title,1  nor  until  the  consent  of  the  legislature  of  the 
State  in  which  the  land  or  site  may  be,  to  such  purchase, 
has   been  given.    The  district  attorneys  of  the   United 
States,  upon  the  application  of  the  Attorney-General,  shall 
furnish  any  assistance  or  information  in  their  power  in 
relation  to  the  titles  of  the  public  property  lying  within 
their  respective  districts.    And  the  Secretaries  of  the  De- 
partments, upon  the  application  of  the  Attorney-General, 
shall  procure  any  additional  evidence  of  title  which  he  may 
deem  necessary,  and  which  may  not  be  in  the  possession 
of  the  officers  of  the  Government,  and  the  expense  of  pro- 
curing it  shall  be  paid  out  of  the  appropriations  made  for 
the  contingencies  of  the  Departments  respectively.1 
Duties  of  At      272.  The  Attorney-General  shall  give   his  advice  and 

torney-General.          .     .  , 

opinion  upon  questions  of  law.  whenever  required  by  the 

Sec.  354,  R   S.     * 

President. 
opinion  of  At      273   The  head  of  any  Executive  Department  may  require 

tomey-General 

upon   questions  the  opinion  of  the  Attorney-General  on  any  questions  of 
June22,i87o,c  law  arising  in  the  administration  of  his  Department.* 

150,  s.  C,  v   16,  p  163.    Sec.  356,  R.  S. 

toLifepartmVenCt8  ^74.  Whenever  a  question  of  law  arises  in  the  adminis- 
SavWar  andtration  of  the  Department  of  War  or  the  Department  of 
the  Navy,  the  cognizance  of  which  is  not  given  by  statute 
to  some  other  officer  from  whom  the  head  of  the  Depart- 
357,  R.S.  ment  may  require  advice,  it  shall  be  sent  to  the  Attorney- 
General,  to  be  by  him  referred  to  the  proper  officer  in  his 
Department,  or  otherwise  disposed  of  as  he  may  deem 
proper. 

275  Any  Question  of  law  submitted  to  the  Attorney- 
r  nis  opinion,  except  questions  involving  a  con- 
noTfV^'p  struction  of  the  Constitution  of  the  United  States,  may  be 
162  by  him  referred  to  such  of  Ins  subordinates  as  he  may  deem 

sec.  358,  R.  s.  appropriate,  and  he  may  require  the  written  opinion  thereon 
of  the  officer  to  whom  the  same  may  be  referred.  If  the 
opinion  given  by  such  officer  is  approved  by  the  Attorney- 

1  The  Attorney -General  in  certifying  the  title  of  land  purchased  by  the  Govern 
ment  must  look  at  the  question  as  one  of  pure  law,  and  can  not  relax  the  rules  of 
law  on  account  either  of  the  desirableness  of  the  object  or  the  smallness  of  the  value 
of  the  land.     6  Opin.  Att.  Gen.,  432.    See,  also,  the  chapters  entitled  THE  PUBLIC 
LANDS,  CONTRACTS  AND  PURCHASES,  AND  THE  CORPS  OF  ENGINEERS. 

2  The  Attorney-General  is  not  authorized  to  give  an  official  opinion  in  any  case, 
except  on  the  call  of  the  President  or  some  one  of  the  heads  of  Departments.    1  Opin 
Att.  Gen.,  211.    Subordinate  officers  of  the  Government  who  desire  an  official  opinion 
of  the  Attorney-General  must  seek  it  through  the  head  of  the  Department  to  (vhicb 
they  are  accountable     Ibid 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  103 

General,  such  approval  indorsed  thereon  shall  give  the 
opinion  the  same  force  and  effect  as  belong  to  the  opinions 
of  the  Attorney-General.1 

276.  Except  when   the  Attorney-General   in  particular    conduct  and 

argument    of 

cases  otherwise  directs,  the  Attorney-General  and  Solicitor-  cases. 
General  shall  conduct  and  argue  suits  and  writs  of  error2o,s.p35,v.i,p.92;' 

i      .,10.  y-T  i         -A.      •       ±,       n         ,  June  25,  1868,  c. 

and  appeals  in  the  Supreme  Court  and  suits  in  the  Court7i,s.5,v.i5,p.75; 
of  Claims  in  which  the  United  States  is  interested,  and  150?  s.5?,'  v.8i6,'  p! 
the  Attorney-General  may,  whenever  he  deems  it  for  the  16< 
interest  of  the  United  States,  either  in  person  conduct  and    Sec*  359'  B*  s' 
argue  any  case  in  any  court  of  the  United  States  in  which 
the  United  States  is  interested,  or  may  direct  the  Solicitor- 
General  or  any  officer  of  the  Department  of  Justice  to 
do  so. 

277.  The  Attorney-  General  may  require  any  solicitor  or 
officer  of  the  Department  of  Justice  to  perform  any 


required  of  the  Department  or  any  officer  thereof.  June  22,  ISTO,  c. 

150,  s.  14,  v.  16,  p.  164.     Sec-  360,  R.  S. 

278.  The  officers  of  the  Department  of  Justice,  under  the    officers  of  the 

Department    t  o 

direction  of  the  Attorney-General,  shall  give  all  opinion  s  perform  all  legal 

,  services  required 

and  render  all  services  requiring  the  skill  of  persons  learned  for  other  Depart- 
in  the  la,w  necessary  to  enable  the  President  and  heads  of  June22,  ISTO.C. 
Departments,  and  the  heads  of  Bureaus  and  other  officers  1641.8'    >v> 
in  the  Departments,  to  discharge  their  respective  duties  ;    sec.  SGI,  B.S. 
and  shall,  on  behalf  of  the  United   States,  procure  the 
proper  evidence  for,  and  conduct,  prosecute,  or  defend  all 
suits  and  proceedings  in  the  Supreme  Court  and  in  the 
Court  of  Claims,  in  which  the  United  States,  or  any  officer 
thereof,  as  such  officer,  is  a  party  or  may  be  interested; 
and  no  fees  shall  be  allowed  or  paid  to  any  other  attorney 
or  counselor  at  law  for  any  service  herein  required  of  the 
officers  of  the  Department  of  Justice,  except  in  the  cases 
provided  by  section  three  hundred  and  sixty-three. 

279.  Whenever  the  head  of  a  Department  or  Bureau  co^"dance  of 
gives  the  Attorney-General  due  notice  that  the  interests  of  R1Fe0b-  ifx187}'S- 

*  51,8«olV,  To,  p*4U. 

the  United  States  require  the  service  of  counsel  upon  the         364 
examination  of  witnesses  touching  any  claim,  or  upon  the 
legal  investigation  of  any  claim,  pending  in  such  Depart- 
ment or  Bureau,  the  Attorney-General  shall  provide  for 
such  service. 

'The  opinions  of  successive  Attorneys-General,  possessed  of  greater  or  less  amount 
of  legal  acumen,  acquirement,  and  experience,  have  come  to  constitute  a  body  of  legal 
precedents  and  exposition,  having  authority  the  same  in  kind,  if  not  the  same  in 
degree,  with  decisions  of  the  courts  of  justice.  6  ibid.,  326.  The  opinion  of  the 
Attorney-General  for  the  time  being  is,  in  terms,  advisory  to  the  Secretary  who  calls 
for  it;  but  it  is  obligatory  as  the  law  of  the  case  unless,  on  appeal  by  such  Secretary 
to  the  common  superior  of  himself  and  the  Attorney-General,  namely,  the  President 
of  the  United  States,  it  be  by  the  latter  overruled.  7  ibid.,  692.  The  Attorney- 
General  will  not  give  a  speculative  opinion,  on  an  abstract  question  of  law,  which 
does  not  arise  in  any  case  presented  for  the  action  of  an  Executive  Department. 
11  ibid.,  189.  Ho  will  only  give  opinions  on  questions  of  law  arising  on  facta  which 
are  authoritatively  stated  by  a  head  of  Department.  10  ibid.,  267. 


104 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


i6,  p. 


united6  states  In     280<  ^&  Solicitor-General,  or  any  officer  of  the  Depart- 
pending  suits,  ment  of  Justice,  may  be  sent  by  the  Attorney  -General  to 

who  may  attend  J  J 

to.  any  State  or  District  in  the  United  States  to  attend  to  the 

150,  s.  5,  v.  16,  'p!  interests  of  the  United  States  in  any  suit  pending  in  any 

of  the  courts  of  the  United  States,  or  in  the  courts  of  any 

sec.  367,  R.  s.  gtate^  Qr  ^  attend  to  any  other  interest  of  the  United 

States. 

Publication  of  281.  The  Attorney-General  shall  from  time  to  time  cause 
Opjun0e22,  ISTO,  c.  to  be  edited,  and  printed  at  the  Government  Printing-Of- 
fice^  an  e(jition  Of  one  thousand  copies  of  such  of  the  opin- 
i°ns  °f  ^ne  law-officers  herein  authorized  to  be  given  as  he 
may  deem  valuable  for  preservation  in  volumes,  which  shall 
be,  as  to  size,  quality  of  paper,  printing,  and  binding,  of  uni- 
form style  and  appearance,  as  nearly  as  practicable,  with 
volume  eight  of  such  opinions,  published,  by  Robert  Farn- 
ham,  in  the  year  eighteen  hundred  and  sixty-eight.  Each 
volume  shall  contain  proper  head-notes,  a  complete  and  full 
index,  and  such  foot-notes  as  the  Attorney-General  may  ap- 
prove. Such  volumes  shall  be  distributed  in  such  manner 
as  the  Attorney  -General  may  from  time  to  time  prescribe.1 


i5o,  s.  is 


Sec.  383,  R.  s. 


HABEAS   CORPUS. 


Par. 

282.  Power  of  courts  to  issue  writs 

of  habeas  corpus. 

283.  Power    of  judges    to  graut 

writs  of  habeas  corpus. 

284.  Writs  of  habeas  corpus  when 

prisoner  is  in  jail. 

285.  Application  for  the  writ  of 

habeas  corpus. 

280.  Allowance  and  direction  of 
the  writ. 

287.  Time  of  return. 

288.  Form  of  return. 

289.  Body  of  the  party  to  be  pro- 

duced. 

290.  Day  for  hearing. 


Par. 

291.  Denial    of   return,    counter- 

allegations,  amendments. 

292.  Summary  hearing;     disposi- 

tion of  party. 

293.  In  cases  involving  the  law  of 

nations,  notice  to  be  served 
on  State  attorney-general. 

294.  Appeals  in   cases  of  habeas 

corpus  to  circuit  court. 

295.  Appeal  to  Supreme  Court. 

296.  Appeals,  how  taken. 

297.  Pending  proceedings  in  cer- 

tain cases,  action  by  State 
authority  void. 


1  Table  showing  the  period  covered  by  each  of  the  nineteen  volumes  of  the  Official  Opin- 
ions of  the  Attorneys-General  of  the  United  States,  (a) 


Opinions. 

Period. 

Opinions. 

Period. 

From— 

To— 

From— 

To- 

Vol.  1  
2  

3 

Aug.  21,  1791 
June  9,1825 
Oct.   10,1835 
Feb.  11,1842 
July  17,  1848 
Mar.  12,  1853 
Oct.     9,  1854 
July  10,  1856 
Mar.  24,  1857 
Jan.     3,  1861 

June  6,  1825 
Sept.  21,  1835 
Feb.  10,1842 
June  28,  1848 
Mar.    3,1853 
Oct.     7,  1854 
July    9,1856 
Mar.    4,1857 
Dec,  17,1857 
Oct.     9,  1863 

Vol.  11  . 
12. 
13. 
14  . 
15. 
16. 
17. 
18  . 
19. 

Nov.    6,1863 
Aug.    1,1866 
Mar.  11,  18G9 
Jan.  15,1872 
May  27,1875 
Apr.  29,  1878 
Jan.     6,  1881 
Apr.  23,  1884 
Apr.  16,  1887 

July   14.1866 
Mar.     3,  1869 
Dec.    21,1871 
Sept.  30,  1874 
Mar.     8,  1878 
Dec.    22,  l°80 
Apr.    19,1884 
Apr.   13,1887 
Dec.    31,1890 

4  

5 

6  
7  
8  

9  

10  .  ... 

a  From  Vol.  3,  Digest  of  Decisions  of  the  Second  Comptroller. 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  105 

282.  The  Supreme  Court  and  the  circuit  and  district  .  Ppwerofcourts 

to  issue  writs  of 

courts  shall  have  power  to  issue  writs  of  habeas  cor  pus.1 


283.  The  several  justices  and  judges  of  the  said  courts.   Powerof  judges 

,  7  to  grant  writs  of 

within  their  respective  jurisdictions,  shall  have  power  to  habeas  corpus. 
grant  writs  of  habeas  corpus  for  the  purpose  of  an  inquiry  20^  ™'}™£: 
into  the  cause  of  restraint  of  liberty.  zPl'tv'  IG^'U- 

Mar.  2,  1833,  c.  57,  s.  7,  v.  4,  p.  634;   Feb.  5,  1867,  c.  28,  §.  1,  v.  14,  pP385;' 
Aug.  29,  1842,  c.  257,  s.  1,  v.  5,  p.  539.  Sec.  762,  R.  S. 

284.  The  writ  of  habeas  corpus  shall  in  no  case  extend  to    writ  of  habeas 

.      .    .,  ,  i  i       •      •  L    j  j  i       corpus     when 

a  prisoner  in  jail,  unless  where  he  is  in  custody  under  or  by  prisoner  is  in 
color  of  the  authority  of  the  United  States,  or  is  committedJasept.24,i789,c. 
for  trial  before  some  court  thereof;  or  is  in  custody  for  an  Mar'.  2,  'fe^'.  57,' 
act  done  or  omitted  in  pursuance  of  a  law  of  the  United  Feb.  fisff^cfts,5 
States,  or  of  an  order,  process,  or  decree  of  a  court  or  judge  Angf'^&l8?! 
thereof;  or  is  in  custody  in  violation  of  the  Constitution  or  fjjg'  8<  *'  Vi  5>  I)P 
of  a  law  or  treaty  of  the  United  States;  or,  being  a  subject    Se(%  768)  R>  s> 
or  citizen  of  a  foreign  state,  and  domiciled  therein,  is  in 
custody  for  an  act  done  or  omitted  under  any  alleged  right, 
title,  authority,  privilege,  protection,  or  exemption  claimed 
under  the  commission,  or  order,  or  sanction  of  any  foreign 
state,  or  under  color  thereof,  the  validity  and  effect  whereof 
depend  upon  the  law  of  nations;  or  unless  it  is  necessary 
to  bring  the  prisoner  into  court  to  testify.2 

285.  Application  for  writ  of  habeas  corpus  shall  be  made  thfj^tofhSSeS 
to  the  court,  or  justice,  or  judge  authorized  to  issue  thecojP«8-5  1867  c 
same,  by  complaint  in  writing,  signed  by  the  person  for  28,  s.  i,  V.  i4,'p. 
whose  relief  it  is  intended,  setting  forth  the  facts  concern- 

ing the  detention  of  the  party  restrained,  in  whose  custody 
he  is  detained,  and  by  virtue  of  what  claim  or  authority,  if 
known.  The  facts  set  forth  in  the  complaint  shall  be  veri- 
fied by  the  oath  of  the  person  making  the  application. 

286.  The  court,  or  justice,  or  judge  to  whom  such  appli-    Allowance  and 

*          J  .  direction  of  the 

cation  is  made  shall  forthwith  award  a  writ  of  habeas  cor-  writ 

1  Tho  Supreme  Court  may  issue  the  writ  in  virtue  of  its  original  jurisdiction  only 
in  cases  affecting  ambassadors,  other  public  ministers,  and  consuls,  or  in  those  to 
which  a  State  is  a  party.    Ex  parte  Hung  Hang,  108  U.  S.,  552.    In  the  exercise  of  its 
appellate  jurisdiction,  it  may  issue  the  writ  for  the  purpose  of  reviewing  the  judi- 
cial decision  of  some  inferior  officer  or  court.    Ibid.,  553;  Ex  parte  Bollman  and 
Swartwout,  4  Cr.,  75  ;  Ex  parte  Watkins,  7  Pet.,  568  ;  Ex  parte  Wells,  18  How.,  307,  328  ; 
Ex  parte  Yerger,  8  Wall.,  85  ;  Ex  parte  Lange,  18  Wall.,  163  ;  Ex  parte  Parks,  93  D.  S., 
18;  Ex  parte  Virginia,  100  U.  S.,  339;  Ex  parte  Siebold,  100  U.  S.,  371.     Application  to 
the  Supreme  Court  for  the  issue  of  the  writ  must  show  that  the  case  is  within  its 
jurisdiction.    In  re  Milburn,  9  Peters,  704. 

2  A  justice  of  the  Supreme  Court  may  issue  the  writ  in  any  part  of  the  United 
States  where  he  happens  to  be,  and  may  make  it  returnable  to  himself,  or  may  refer 
it  to  the  court  for  determination.    Ex  parte  Clarke,  100  U.  S.,  399,  403.    The  writ  can 
not  be  made  to  perform  the  function  of  a  writ  of  error.    Ex  parte  Virginia,  100 
U.  S.,  339;  Ex  parte  Reed,  ibid.,  13,  23.    The  writ  may  be  used  in  connection  with 
the  writ  of  certiorari  to  determine  whether  the  court  below  acted  with  jurisdiction. 
Ex  parte  Lange,  18  Wall.,  163;  Ex  parte  Virginia,  100  U.S.,  339;  Ex  parte  Siebold, 
ibid.,  371.    This  section  does  not  require  that  the  law  therein  mentioned  shall  be 
by  express  act  of  Congress.    Any  obligation  fairly  and  properly  inferable  from  the 
Constitution,  or  any  duty  of  a  United  States  officer  to  be  derived  from  the  general 
scope  of  his  duties,  is  a  "law"  within  the  meaning  of  the  statute.    Cunningham  v. 
N  eagle,  135  U.  S.,  1.     See   also  Ex  parte  Dorr,  3  How.,  103;  Ex  parte  Barnes,   1 
Sprague,  133;  Ex  parte  Bridges,  2  Woods,  428. 


106  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

28Fs  bi  5V18i6J  '  c'  Pus?  un^ess  ft  appears  from  the  petition  itself  that  the  party 
ssb.  is  not  entitled  thereto.    The  writ  shall  be  directed  to  the 

sec.  755,  R.  s.  person  in  whose  custody  the  party  is  detained.1 
Time  of  return.     287.  Any  person  to  whom  such  writ  is  directed  shall  make 
28,  s.  i,  V.  14,'  p.  due  return  thereof  within  three  days  thereafter,  unless  the 
party  be  detained  beyond  the  distance  of  twenty  miles;  and 
sec.  7  »6,  R.  s.  .^  j^y^^  taat  distance  and  not  beyond  a  distance  of  a 
hundred  miles,  within  ten  days;  and  if  beyond  the  distance 
of  a  hundred  miles,  within  twenty  days.2 

Form  of  return.     288.  The  person  to  whom  the  writ  is  directed  shall  certify 
28,  s.  i,  V.  14,'  p!  to  the  court,  or  justice,  or  judge  before  whom  it  is  return- 

sec.  757,  R.  s.  able  tne  true  cause  of  tne  detention  of  such  party.2 
Bodyofthepar-     289.  The  person  making  the  return  shall  at  the  same  time 
fo!  bring  the  body  of  the  party  before  the  judge  who  granted 


Day  for  hear  290.  When  the  writ  is  returned,  a  day  shall  be  set  for  the 
m|'eb.  5,  1867,  c.  hearing  of  the  cause,  not  exceeding  five  days  thereafter, 
28,s.i,v.i4,p.385  un|esg  ^ie  par^y  petitioning  requests  a  longer  time. 

Sec.  759,  R.  S.  __  _  _ 


1  In  the  courts  of  the  United  States  the  practice  prevailing  at  the  common  law  at 
the  time  of  the  adoption  of  the  Constitution  is  still  pursued.     The  writ  may  be 
granted  in  term  time  or  by  a  justice  or  judge  of  a  Federal  court,  having  jurisdiction 
to  issue  the  writ,  in  vacation,  or  at  any  time,  and  may  be  issued  by  a  justice  of  the 
Supreme  Court  in  any  part  of  the  country,  wherever  he  may  be.     Hurd,  Hab.  Corp., 
214 ;  U.  S.  v.  Clarke,  100  U.  S.,  403.    The  usual  course  of  proceeding  is  for  the  court, 
on  the  application  of  the  prisoner  for  a  writ  of  habeas  corpus,  to  issue  the  writ  and, 
on  its  return,  to  hear  and  dispose  of  the  case;  but  where  the  cause  of  imprisonment 
is  fully  shown  by  the  petition,  the  court  may,  without  issuing  the  writ,  consider  and 
determine  whether,  upon  the  grounds  presented  in  the  petition,  the  prisoner,  if 
brought  before  the  court,  would  be  discharged.    Ex  parte  Milligan,  4  Wall.,  2. 
Under  the  requirements  of  this  section,  the  writ,  though  a  matter  of  right,  does  not 
issue  as  a  matter  of  course  and  may  be  refused  if,  upon  the  showing  made  in  the 
petition,  it  appear  that  the  petitioner,  if  brought  into  court  would  be  remanded.    In 
re  King,  51  F.  R.,  434;  In  re  Jordan,  49  F.  R.,  238;  In  re  Haskell,  52  F.  R.,  795.    Sus- 
pension of  the  privilege  of  the  writ  does  not  suspend  the  writ  itself.    The  writ  issues 
as  a  matter  of  course;  and,  on  its  return,  the  court  decides  whether  the  applicant  is 
denied  the  privilege  of  proceeding  any  further.     Ex  parte  Milligan,  4  Wall. ,2. 

2  The  duty  of  an  officer  of  the  Army  upon  whom  a  writ  of  habeas  corpus  is  served 
is  prescribed  in  the  following  paragraphs  of  the  Army  Regulations  of  1895: 

9(59.  Officers  will  make  respectful  returns  in  writing  to  all  writs  of  habeas  corpus 
served  on  them.  When  the  writ  is  issued  by  a  State  authority,  and  the  person  held 
by  the  Army  officer  is  a  civilian  who  has  'been  apprehended  under  a  warrant  of 
attachment  to  be  taken  before  a  court-martial  to  testify  as  a  witness,  the  officer  will 
not  produce  the  body,  but  will,  by  his  return,  set  forth  fully  the  authority  by  which 
ho  holds  the  person,  and  allege  that  the  State  authority  is  without  jurisdiction  to 
issue  the  writ  of  habeas  corpus,  and  ask  to  have  the  same  dismissed.  He  will  also 
exhibit  to  the  court  or  officer  issuing  the  writ  of  habeas  corpus  the  warrant  of 
attachment  and  the  subpoena  (and  the  proof  of  the  service  of  the  subpcena)  on  which 
the  warrant  of  attachment  was  based,  and  also  a  certified  copy  of  the  order  conven- 
ing the  court-martial  before  which  he  had  been  commanded  to  take  the  person. 

970.  Should  a  writ  of  habeas  corpus  issued  by  a  State  court  or  judge  be  served 
upon  an  Army  officer  commanding  him  to  produce  an  enlisted  man  or  show  cause 
for  his  detention,  the  officer  will  decline  to  produce  in  court  the  body  of  the  person 
named  in  the  writ,  but  will  make  respectful  return  in  writing  to  the  effect  that  the 
man  is  a  duly  enlisted  soldier  of  the  United  States,  and  that  the  Supreme  Court  of 
the  United  States  has  decided  that  a  magistrate  or  court  of  a  State  has  no  jurisdic- 
tion in  such  a  case. 

971.  A  writ  of  habeas  corpus  issued  by  a  United  States  court  or  judge  will  be 
promptly  complied  with.    The  person  alleged  to  be  illegally  restrained  of  his  liberty 
will  be  taken  before  the  court  from  which  the  writ  has  issued,  and  a  return  made 
setting  forth  the  reasons  for  his  restraint.    The  officer  upon  whom  such-a  writ  is 
served  will  at  once  report  the  fact  of  such  service  direct  to  the  Adjutant-General  of 
the  Army  by  telegraph. 

The  form  of  return  to  the  writ  will  be  found  in  the  Manual  for  Courts-Martial, 
pages  146-148. 

If  the  service  of  the  writ  be  prevented  by  military  force,  it  will  be  ordered  to  be 
placed  on  the  files  of  the  court,  to  be  served  when  practicable.  Ex  parto  Winder,  2 
Clifford,  89. 

An  order  from  a  subordinate  in  the  War  Department  to  an  officer  not  to  obey  the 
writ  by  the  production  of  the  body,  is  no  justification  to  the  officer.  Ex  parte  Field, 
SBlatchford,  C.  C.,  63. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  107 

291.  The  petitioner  or  the  party  imprisoned  or  restrained 
may  deny  any  of  the  facts  set  forth  in  the  return,  or 


^allege  any  other  facts  that  may  be  material  in  the  case.    ffeb.  5,  ise?,  c. 
Said  denials  or  allegation  shall  be  under  oath.    The  return  385.8' 
and  all  suggestions  made  against  it  may  be  amended,  by    Sec.  760,  R.  s. 
leave  of  the  court,  or  justice,  or  judge,  before  or  after  the 
same  are  tiled,  so  that  thereby  the  material  facts  may  be 
ascertained. 
292.  The  court,  or  justice,  or  judge  shall  proceed  in  a    summary  hear. 

'      .  .         I,  *   ,,  T_      i  »ng;    disposition 

summary  way  to  determine  the  facts  of  the  case,  by  hear-  of  party. 

,  ,  , ,  , .  Feb.  5,  1867,  c. 

mg  the  testimony  and  arguments,  and  thereupon  to  dispose  28,  s.  i,  v.  u,  p. 
of  the  party  as  law  and  justice  require.1 

. Sec.  761,  R.  S. 

1  The  purpose  of  the  writ  is  to  enable  the  court  to  inquire,  first,  if  the  petitioner 
is  restrained  of  his  liberty.  If  he  is  not,  the  court  can  do  nothing  but  discharge  the 
writ.  If  there  is  such  restraint,  the  court  can  then  inquire  into  the  causes  of  it, 
and  if  the  alleged  cause  is  unlawful,  it  must  then  discharge  the  petitioner.  *  *  * 
In  the  case  of  a  man  in  the  military  or  naval  service,  where  he  is,  whether  as  an  offi- 
cer or  private,  always  more  or  less  subject  in  his  movements,  by  the  very  necessity 
of  military  rule  and  subordination,  to  the  orders  of  his  superior  officer,  it  should  be 
quite  clear  that  some  unusual  restraintupon  his  liberty  of  personal  movement  exists 
to  justify  the  issue  of  the  writ;  otherwise  every  order  of  the  superior  officer  direct- 
ing the  movements  of  the  subordinate,  which  necessarily,  to  some  extent  controls 
his  freedom  of  will,  may  be  held  to  be  a  restraint  of  his  liberty  and  the  party  so 
ordered  may  seek  relief  from  obedience  by  means  of  a  writ  of  habeas  corpus.  Some- 
thing more  than  moral  restraint  is  necessary  to  make  a  case  for  habeas  corpus. 
There  must  be  actual  confinement  or  the  present  means  of  enforcing  it.  Wales  v. 
Whitney,  114  D.S  ,  564,571.  Where  a  court-martial  has  jurisdiction  of  the  person 
and  of  the  subject  matter  and  is  competent  to  pass  the  sentence  under  which  the 
prisoner  is  held,  its  proceedings  can  not  be  collaterally  impeached,  and  a  writ  of 
habeas  corpus  can  not  be  made  to  perform  the  function  of  a  writ  of  error.  Ex  parte 
Reed,  100  U.  S.,13,23;  Ex  parto  Kearney,  7  Wheat.,  38;  Ex  parte  Watkins,  3  Pet., 
193;  Ex  parte  Milligan,  4  Wall.,  2;  Ex  parte  Mason,  105  U.S. .696;  Ex  parte  Curtis, 
106  U.S.,  371;  Ex  parte  Carrl,  ibid.,  521;  Ex  parte  Bigelow,  113  U.  S.,  328;  Smith 
v.  Whitney,  116  U.S.,  167;  U.  S.v.  Grimley,  137  U.  S.,147;  Johnson  v.  Sayre,  158  U.  S., 
109;  In  re'Boyd,  49  F.  R.,48.  Where  a  medical  director  in  the  Navy,  against  whom 
charges  had  been  preferred  and  in  whose  case  a  general  court-martial  had  been 
ordered,  was  placed  in  arrest  by  the  Secretary  of  the  Navy,  and  notified  to  confine 
himself  to  the  limits  of  the  city'of  Washington :  Held,  That  thisconstituted  no  such 
restraint  of  liberty  as  to  sustain  a  writ  of  habeas  corpus.  Wales  v.  Whitney,  114 
U.  S.,  564.  Where  a  person  is  in  custody  under  process  from  a  State  court  of  original 
jurisdiction,  for  an  alleged  offense  against  the  laws  of  such  State,  and  it  is  claimed 
that  he  is  restrained  of  his  liberty  in  violation  of  the  Constitution  of  the  United 
States,  the  circuit  court  has  a  discretion  whether  it  will  discharge  him  upon  habeas 
corpus,  in  advance  of  his  trial  in  the  court  in  which  he  is  indicted;  that  discretion, 
however,  to  be  subordinated  to  any  special  circumstances  requiring  immediate 
action.  When  the  State  court  has  finally  acted  upon  the  case,  the  circuit  court  has 
still  a  discretion  whether,  under  all  the  circumstances,  the  accused,  if  convicted, 
shall  be  put  to  his  writ  of  error  from  the  highest  court  of  the  State,  or  whether  it 
will  proceed,  by  writ  of  habeas  corpus,  summarily  to  determine  whether  the  prisoner 
is  restrained  o'f  his  liberty  in  violation  of  the  Constitution  of  the  United  States.  Ex 
parte  Royall,  117  U.  S..  241,  253;  Ex  parto  Watkins,  3  Pet.,  201;  Ex  parte  Bridges,  2 
Woods,  428;  Ex  parte  Lange,  ISWall.,  163;  In  re  King,  51  F.  R.,  434;  Ex  parte  Hanson, 
28  F.  R.,  127, 131;  In  re  Jordan,  49  F.  R.,  238.  Where  a  United  States  marshal,  in 
custody  for  an  act  done  in  pursuance  of  a  law  of  the  United  States  is  brought  before 
a  Federal  court  by  habeas  corpus  and  discharged,  he  can  not  afterwards  be  tried  by 
the  State  courts.  Cunningham  v.  Neagle,  135  U.  S.,  1. 

Conflict  of  State  and  Federal  authority.— The  writ  of  habeas  corpus  is  a  high  pre 
rogative  writ  known  to  the  common  law,  the  great  object  of  which  is  the  liberation 
of  those  who  may  be  imprisoned  without  sufficient  cause.  It  is  in  the  nature  of  a 
writ  of  error  to  examine  the  legality  of  the  commitment.  Ex  parte  Watkins,  3  Pet., 
202.  The  Federal  courts  by  whom,  and  the  cases  in  which,  it  may  be  issued  are 
described  in  sections  751,752,753,754,762,763,764,  and  765  of  the  Revised  Statutes. 
Subject  to  t  he  paramount  authority  of  the  National  Government,  by  its  own  tribunals, 
to  inquire  into  the  legality  of  custody  of  prisoners  held  by  the  United  States  courts  or 
officers,  the  States  may  inquire  into  the  grounds  on  which  any  person  in  their  respec- 
tive limits  is  restrained  of  his  liberty.  Robb  v.  Connolly,  III  U.  S.,  624.  A  State  court 
has  no  jurisdiction  by  habeas  corpus  to  release  a  prisoner  held  by  order  of  Federal 
court.  Ableman  v.  Booth,  21  How.,  506.  And  a  judicial  officer  of  a  State  can  not,  by 
means  of  a  writ  of  habeas  corpus,  take  and  discharge  a  person  held  by,  or  under  color 
of  authority  of  the  United  States.  If  it  appear  upon  the  return  to  a  writ  of  habeas 
corpus  that,  the  person  is  detained  under  color  of  the  authority  of  the  United  States, 
the  ytato  court  has  no  further  jurisdiction.  Tarble's  Case,  13  Wall.,  397.  We  do  not 
question  the  authority  of  the  State  court  or  judge  who  is  authorized  by  the  laws  of 
the  State  to  issue  the  writ  of  habeas  corpus,  to  issue  it  in  any  case  where  the  party 
is  imprisoned  within  its  territorial  limits,  provided  it  does  not  appear,  when  the 


108  THE    MILITARY    LAWS    OF    THE    UNITED    STATES, 

in  cases  invoiv-     293.  When  a  writ  of  habeas  corpus  is  issued  in  the  case 

ing  the  law  of  na- 
tions, notice  to  be  of  any  prisoner  who,  being  a  subject  or  citizen  of  a  foreign 

served  on   State  J    J 

attorney  general,  state  and  domiciled  therein,  is  committed,  or  confined,  or  in 
257,  vfs,  p.  539.' °  custody,  by  or  under  the  authority  or  law  of  anyone  of  the 
sec.  762,  B.  s.  United  States,  or  process  founded  thereon,  on  account  of  any 
act  done  or  omitted  under  an  alleged  right,  title,  author- 
ity, privilege,  protection,  or  exemption,  claimed  under  the 
commission  or  order  or  sanction  of  any  foreign  state,  or 
under  color  thereof,  the  validity  and  effect  whereof  depend 
upon  the  law  of  nations,  notice  of  the  said  proceeding,  to 
be  prescribed  by  the  court,  or  justice,  or  judge  at  the  time 
of  granting  said  writ,  shall  be  served  on  the  attorney-gen- 
eral or  other  officer  prosecuting  the  pleas  of  said  State, 
and  due  proof  of  such  service  shall  be  made  to  the  court, 
or  justice,  or  judge  before  the  hearing. 
Appeals    in     294.  From  the  final  decision  of  any  court,  justice,  or 

cases   of  habeas  .,.„.  .»*•.«.  i  •       j_-         r 

corpus  to  circait judge  inferior  to  the  circuit  court,  upon  an  application  for 
c°Aug. 29, 1842, c.  a  writ  of  habeas  corpus  or  upon  such  writ  when  issued,  an 
rJb.s',  i&?;<?28!  appeal  may  be  taken  to  the  circuit  court  for  the  district  in 
Mar.V27,4'i86838c:  which  the  cause  is  heard : 

34.S.2.  v.i5,p  44.     j    jn  ^  case  of  anv  persou  alleged  to  be  restrained  of 
sec.  763,  R.  s.  ujg  iiberty  lu  violation  of  the  Constitution,  or  of  any  law 
or  treaty  of  the  Dnited  States. 

2.  In  the  case  of  any  prisoner  who,  being  a  subject  or 
citizen  of  a  foreign  state,  and  domiciled  therein,  is  com- 

application  is  made,  that  the  person  imprisoned  is  in  custody  under  the  authority  of 
the  Dnited  States.  The  court  or  judge  has  a  right  to  inquire,  in  this  mode  of  pro- 
ceeding, for  what  cause  and  by  what  authority  the  prisoner  is  confined  within  the 
territorial  limits  of  the  State  sovereignty.  And  it  is  the  duty  of  the  marshal,  or 
other  person  having  the  custody  of  the  prisoner,  to  make  known  to  the  judge  or 
court,  by  a  proper  return,  the  authority  by  which  he  holds  him  in  custody.  *  *  * 
But,  after  the  return  is  made,  and  the  State  judge  or  court  judicially  apprised  that 
the  party  is  in  custody  under  the  authority  of  the  United  States,  they  can  proceed 
no  further.  *  *  -  And  although,  as  we  have  said,  it  is  the  duty  of  the  marshal, 
or  other  person  holding  him,  to  make  known,  by  a  proper  return,  the  authority  under 
which  he  detains  him,  it  is  at  the  same  time  imperatively  his  duty  to  obey  the  proc- 
ess of  the  United  States,  to  hold  the  prisoner  in  custody  under  it,  and  to  refuse 
obedience  to  the  mandate  or  process  of  any  other  Government  And  consequently 
it  is  his  duty  uotto  take  the  prisoner,  nor  suffer  him  to  be  taken,  before  a  State  judge 
or  court  upon  a  habeas  corpus  issued  under  State  authority.  No  State  judge  or 
court,  after  they  are  judicially  informed  that  the  party  is  imprisoned  under  the 
authority  of  the  United  States,  has  any  right  to  interfere  with  him,  or  to  require  him 
to  be  brought  before  them.  And  it  the  authority  of  a  State,  in  the  form  of  a  j  udicial 
process  or  otherwise,  should  attempt  to  control  the  marshal  or  other  authorized  officer 
or  ag^ent  of  the  United  States,  in  any  respect,  in  the  custody  of  his  prisoner,  it  would 
be  his  duty  to  resist  it,  and  to  call  to  his  aid  any  force  that  might  be  necessary  to 
maintain  the  authority  of  law  against  illegal  interference.  No  judicial  process, 
whatever  form  it  may  assume,  can  have  any  lawful  authority  outside  of  the  limits 
of  the  jurisdiction  of  the  court  or  judge  by  whom  it  was  issued  and  an  attempt  to 
enforce  it  beyond  these  boundaries  is  nothing  less  than  lawless  violence.  Ablemau 
v.  Booth,  21  How.,  506.  A  State  judge  has  no  jurisdiction  to  issue  a  writ  of  habeas 
corpus  for  a  prisoner  in  custody  of  an  officer  of  the  United  States,  if  the  fact  of  such 
custody  is  known  to  him  before  issuing  the  writ;  and  if  such  fact  appears  on  the 
return  to  the  writ,  all  further  proceedings  by  him  are  void.  And  if  the  United 
States  officer  resist  the  enforcement  of  the  State  writ,  and  is  imprisoned  therefor,  he 
will  bo  discharged  by  the  Federal  court.  Ex  parte  Sitford.  5  Am.  Law  Reg.  (O.  S., 
659).  A  military  officer  of  the  United  States  is  not  bound  to  produce  the  body  of  an 
enlisted  soldier  in  answer  to  a  writ  of  habeas  corpus  issued  from  a  State  court  or 
judge.  In  re  Neill,  8  Blatch.,  166.  The  return  of  a  military  officer  to  a  writ  of  habeas 
corpus  need  not  be  on  oath.  In  re  Neill,  8  Blatch.,  165.  The  validity  of  the  enlist- 
ment of  a  soldier  can  not  be  inquired  into  by  a  State  court,  by  the  issue  of  a  writ  of 
habeas  corpus,  and  an  officer  of  the  Army  may  properly  refuse  to  discharge  an 
enlisted  man  in  his  command  upon  the  order  of  a  State  court.  In  re  Farrand,  1 
Abbot,  140,  147. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  109 

mitted  or  confined,  or  in  custody  by  or  under  the  authority 
or  Jaw  of  the  United  States,  or  of  any  State,  or  process 
founded  thereon,  for  or  on  account  of  any  act  done  or 
omitted  under  any  alleged  right,  title,  authority,  privilege, 
protection,  or  exemption,  set  up  or  claimed  under  the  com- 
mission, order,  or  sanction  of  any  foreign  state  or  sover 
eignty,  the  validity  and  effect  whereof  depend  upon  the 
law  of  nations,  or  under  color  thereof.1 

295.  From  the  final  decision  of  such  circuit  court  an    Appeal  to  Su- 

jjreme  Court. 

appeal  may  be  taken  to  the  Supreme  Court  in  the  cases    Aug.  29,1842,  ; 

.,       ,    .J     .,  257,  v    5,  p.  539; 

described  m  the  preceding  section.  Mar  3,i885,v.23.P.437.    sec.  764,  R.S. 

296.  The  appeals  allowed  by  the  two  preceding  sections    Appeals,  how 
shall  be  taken  on  such  terms,  and  under  such  regulations    Aog.  29,1842,0, 
and  orders,  as  well  for  the  custody  and  appearance  of  the  Feb.  5',  i&S.'cS, 
person  alleged  to  be  in  prison  or  confined  or  restrained  8  ]'  V'14)P'385- 
of  his  liberty,  as  for  sending  up  to  the  appellate  tribunal  a    Sec'  765'  B*  s* 
transcript  of  the  petition,  writ  of  habeas  corpus,  return 

thereto,  and  other  proceedings,  as  may  be  prescribed  by 
the  Supreme  Court,  or,  in  default  thereof,  by  the  court  or 
judge  hearing  the  cause. 

297.  Pending  the  proceedings  or  appeal   in   the  cases    Pending   pro 
mentioned  in  the  three  preceding  sections,  and  until  final 


judgment  therein,  and  after  final  .judgment  of  discharge,  j-  v      aut 


any  proceeding  against  the  person  so  imprisoned  or  con-  257?$. 
fined  or  restrained  of  his  liberty,  in  any  State  court,  or  by  feib'v'i46pC385: 
or  under  the  authority  of  any  State,  for  any  matter  so  Mar  3,  1393,  v.  27,' 
heard  and  determined,  or  in  process  of  being  heard  and  P  sec!  766,  R.  s. 
determined,  under  such  writ  of  habeas  corpus,  shall  be 
deemed  null  and  void.    That  no  appeal  shall  be  had  or 
allowed  after  six  months  from  the  date  of  the  judgment  or 
order  complained  of.     Act  of  March  5,  1893  (27  Stat.  L.,  751.) 

THE   COURT   OF   CLAIMS.2  , 

JURISDICTION,    POWERS,   AND   PROCEDURB. 


Par. 

298.  Jurisdiction. 

299.  Private  claims   in  Congress, 

when  transmitted  to  Court 
of  Claims. 

300.  Judgments  for  set-off  or  coun- 

ter-claim, how  enforced. 


Par. 

301.  Decree    on    account  of  pay- 

masters, etc. 

302.  Claims  referred  by   Depart- 

ments. 

303.  Procedure  in  cases  transmit- 

ted  by  Departments. 


'Ex  parte  McCardle,  6  Wall.,  318,  Ex  parte  McCardle,  7  Wall.,  506;  Ex  parte 
Terger,  8  Wall.,  85. 

2The  Court  of  Claims  was  established  by  the  acts  of  February  24,  1855  (10  Ctat. 
L.,  612),  March  3,1863  (12  Stat.  L.,  765),  and  May  8,  1872  (17  Stat.  L.,  85).  This  court 
was  created  with  a  view  to  give  legal  redress  to  the  citizen  as  against  the  Govern- 
ment where  he  would  have  had  legal  redress  as  against  another  citizen.  It  is  a 
curious  fact,  not  generally  known,  that  the  example  of  Prussia  and  the  German 
States  in  guarding  the  private  rights  of  persons  by  subjecting  the  Government,  in 
matters  of  account,  to  the  judicial  power  of  ordinary  courts  of  justice,  led  to  the 
establishment  of  the  Court  of  Claims.  Brown  v.  U.  S..  5  C.  Cls.  11.  571,  577.  The 
provisions  of  the  act  of  March  3,  1863,  authorizing  the  Court  of  Claims  to  hear  and. 
determine,  without  a  jury,  claims  against  Government  with  set-offs,  is  not  uncon- 
stitutional. McElrath  v,  U,  S,,  102  U.  S,,  426. 


110 


THE    MILITARY   LAWS    OF   THE    UNITED   STATES. 


Par. 

304.  J  udgments  in  cases  transmit- 

ted by  Departments,  how 
paid. 

305.  Claims  growing  out  of  trea- 

ties not  cognizable  therein. 

306.  Claims  pending    in   other 

courts  not  to  be  prosecuted 
in  Court  of  Claims. 

307.  Aliens. 

308.  Limitation. 

301).  Rules  of  practice;  contempts. 

310.  Oaths  and  acknowledgments. 

311.  Petition. 

312.  Petition   dismissed  if  issue 

found  against  claimant  as 
to  allegiance,  etc. 

313.  Burden  of  proof  and  evidence 

as  to  loyalty. 

314.  Commissioner  to  take  testi- 

mony. 

315.  Power  to  call  upon  Depart- 

ments for  information. 

316.  Testimony  not  to  be  taken, 

when. 


Par. 

317.  Witnesses  not  excluded    on 

account  of  color. 

318.  Examination  of  claimant 

319.  Testimony  taken  where  de- 

ponent resides. 

320.  Witnesses,  how  compelled  to 

attend  before  commission- 
ers. 

321.  Cross-examination 

322.  Witnesses,  how  sworn. 

323.  Fees    of    commissioner,     by 

whom  paid. 

324.  Claims  forfeited  for  fraud. 

325.  New  trial  on  motion  of  claim- 

ant. 

326.  New  trial  on  motion  of  United 

States. 

327.  Payment  of  judgments. 

328.  Interest. 

329.  Interest  on  claims. 

330.  Payment  of  judgment  a  full 

discharge,  etc. 

331.  Final  judgments  a  bar. 
332-338.  The  Bowman  Act. 
339-353.  The  Tucker  Act. 


Jurisdiction. 


Claims  founded 
on  statutes  or 
contracts,  or  re- 
ferred by  C  o  n  - 


Feb.  24, 1855,  c. 
122,  s.  l,v.  10,  p. 
612  ;June22, 1874, 
c.  393,  s.2,  v.  18,  p. 
192;  Mar.  3,  1875, 
c.  149, v.  18,  p.  481. 


298.  The  Court  of  Claims  shall  have  jurisdiction  to  hear 
and  determine  the  following  matters : 

First.  All  claims  founded  upon  any  law  of  Congress,1  or 
upon  any  regulation  of  an  Executive  Department,2  or  upon 
any  contract,  expressed  or  implied,3  with  the  Government 

1  A  claimant  presenting  a  claim  founded  upon  a  law  of  Congress  has  a  legal  right 
under  section  1059,  Revised  Statutes,  to  a  definitive  adjudication;  and  the  power  of 
the  court  to  afford  that  can  not  be  considered  as  interfered  with  by  anything  short 
of  a  lodgment  of  the  power  of  definitive  adjudication  in  some  other  tribunal  or 
officer.  Thomas  v.  U.  S.,  16  C.  Cls.  R.,  522.  The  rejection  of  a  claim  by  the  account- 
ing oflicers  leaves  the  party  to 


at  law,  viz,  an  action  in  this  court, 

though  he  may  have  accepted  the  portion  allowed.    Lougwill  v.  U.  S.,  17  C.  Cls.  R., 
Sec.  1059,  B.  S.  288;  U.  S.  v.  Kauflmau,  96  U.  S.,  567. 

2 Regulations  of  an  Executive  Department  are  rules  relating  to  the  subjects  on 
which  a  Department  acts  and  are  made  by  its  head  under  an  act  of  Congress  con- 
ferring that  power  and  thereby  giving  such  regulations  the  force  of  law.  A  mere 
order  of  the  President  or  of  a  Secretary  is  not  a  regulation.  Harvey  v.  U.  S.,  3  C. 
Cls.  R.,  38.  By  the  term  "any  regulation"  is  doubtless  intended  any  regulation 
within  the  lawful  discretion  of  the  head  of  an  Executive  Department. 
When  Congress  permits  regulations  to  be  formulated  and  published  and  carried 
into  effect  year  after  year,  the  legislative  ratification  must  be  implied.  Maddox  v. 
TJ.  S.,  20  C.  Cls.  R.,  ISO.  198. 

3  The  jurisdiction  of the  Court  of  Claims  is  confined  to  suits  arising  from  contracts 
express  or  implied.  Langford  v.  U.  S.,  101  U.  S.,  341.  The  United  States  can  not  be 
sued  in  the  Court  of  Claims  on  equitable  considerations  merely.  Bouner  v.  U.  S., 
9  W_all.,  156.  The  language  of  the  statutes  which  confer  jurisdiction  on  the  Court  of 
Claims  excludes,  by  the  strongest  implication,  demands  against  the  Government 
founded  on  torts.  In  such  cases,  where  it  is  proper  for  the  nation  to  furnish  a  rem- 
edy, Congress  has  wisely  reserved  the  matter  for  its  own  determination.  Gibbons 
v.  U.  S.,  8  Wall.,  269,  275 ;  Reed  v.  U.  S.,  11  Wall.,  591 ;  Langford  v.  U.  S.,  101  U.  S.,  3il. 
See,  also,  paragraphs  339-353  post. 

CONTRACTS. 

The  Court  of  Claims,  in  the  construction  and  enforcement  of  contracts,  is  bound  to 
apply  the  principles  which  govern  like  contracts  between  individuals.  U .  S.  v.  Smoot, 
15Wall.,36;  Curtisv.U.  S..2C.  Cls.  R.,144;  Brookes.  U.S.,  ibid.,  180.  All  questions 
of  salary  are  questions  of  contract,  and  whether  the  salary  is  fixed  by  law,  or  by 
order  of  a  Department  under  authority  of  law,  the  Government  contracts  to  pay  the 
officer  his  salary,  and,  failing  to  do  so,  a  suit  therefor  may  be  maintained  in  this  court, 
whether  the  case  arises  under  a  revenue  act  or  any  other.  Patton  v.  U.  S.,  7  C.  Cla. 
R.,362.  The  United  States  can  no  more  discharge  its  contracts  by  such  perform- 
ance than  can  an  individual  person  do  so.  Congress  may  fail  to  appropriate,  in  whole 
or  in  part,  the  money  required  for  payment  of  a  public  creditor,  and  thus  leave  the 


THE    MILITARY   LAWS   OF    THE    UNITED    STATES.  Ill 

of  the  United  States,  and  all  claims  which  may  be  referred 
to  it  by  either  House  of  Congress. 
Second.  All  set-offs.1  counter-claims,  claims  for  damages,    set-offs    and 

1  counterclaims  of 

whether  liquidated  or  unliquidated,  or  other  demands  what-  united  states. 
soever,  on  the  part  of  the  Government  of  the  United  States  92,  B.  3,  V.  12,' p! 
against  any  person  making  claim  against  the  Government ' 
in  said  court. 

Third.  The  claim  of  any  paymaster,  quartermaster,  com-  0^Pe^bur  8in« 
missary  of  subsistence,  or  other  disbursing  officer  of  the  14Ma^» 1866' v- 
United  States,  or  of  his  administrators  or  executors,  for 

public  officer  without  authority  to  draw  money  from  the  Treasury  for  that  purpose, 
but  the  indebtedness  and  liability  remain  in  force.  Mitchell  v.  U.  S.,  18  C.  Cls.  R., 
281,287;  Graham  w.TJ.S.,  1  ibid.,  380;  Collins  v.U.S.,  15  ibid  ,22;  French  c.U.S.,  16 
ibid.,  419.  An  officer  who  has  been  wholly  retired  from  the  service,  but  in  whose 
case  the  order  of  retirement  has  been  revoked  by  the  President,  who  directs  his  name 
to  bo  placed  on  the  retired  list,  is  an  officer  de  facto,  and,  though  illegally  on  such 
retired  list,  money  paid  him  by  way  of  salary,  so  long  as  he  holds  the  office  in  good 
faith,  can  not  be  recovered  back.  When,  one  claiming  to  be  an  officer  renders  no 
service  and  holds  no  official  relations  with  the  Government,  money  paid  him  for 
salary  may  bo  recovered  back.  Miller  v.  U.  S.,  19  C.  Cls.,  R.,  338.  In  an  action  in  the 
Court  of  Claims  to  recover  a  balance  claimed  to  be  due  on  pay  account,  the  United 
States  can  set  up,  as  a  counterclaim,  an  alleged  overpayment  to  Mm  on  account  of  • 
pay,  and  can  have  judgment  for  its  collection.  U.  S.  v.  Burchard,  125  U.  S.,  176 ;  MoEl- 
rathv.U.  S.,  102U.  S.,426. 

An  officer  can  only  bind  the  Government  by  acts  which  come  within  a  just  exer- 
cise of  his  official  power.  Hunter  v.  U.  S.,  5  Pet.,  173, 178 ;  The  Floyd  Acceptances,  7 
Wall.,  666;  Whitesidev.  U.  S..93U.  S.,247.  Unless  the  Government  has  ratified  a 
contract  of  an  officer  in  excess  of  his  authority,  or  received  the  benefit  of  it,  it  is  not 
liable.  The  ratification  of  some  of  a  series  of  unauthorized  acts  is  not  to  be  con- 
strued to  be  an  approval  of  any  not  specified.  Pitcher  v.  U.  S.,  1  C.  Cls.  R.,  7;  De 
Celis  v.  U.  S.,  13  C.  Cls.  R.,  117. 

IMPLIED  CONTRACTS. 

To  constitute  an  implied  contract  "there  must  have  been  some  consideration  mov- 
ing to  the  United  States ;  or  they  must  have  received  the  money,  charged  with  a  duty 
to  pay  it  over;  or  the  claimant  must  have  had  a  lawful  right  to  it  when  it  was  re- 
ceived, as  in  the  case  of  money  paid  by  mistake.  Knote  v.  U.  S.,  95  U.  S.,  149, 156.  A 
contract  to  reimburse  is  implied  when  the  Government  takes  private  property  for 
public,  use.  Such  a  taking  of  private  property  by  the  Government  when  the  emer- 
gency of  the  public  service  in  time  of  Avar,  or  impending  public  danger,  is  too 
urgent  to  admit  of  delay,  is  everywhere  regarded  as  justified,  if  the  necessity  for 
the  use  of  the  property  is  imperative  and  immediate  and  the  danger,  as  heretofore 
described,  is  impending;  and  it  is  equally  clear  that  the  taking  of  such  property, 
under  such  circumstances,  creates  an  obligation  on  the  part  of  the  Government  to 
reimburse  the  owner  to  the  full  value  of  the  service.  Private  rights,  under  such 
extreme  and  imperious  circumstances,  must  give  way,  for  the  time,  to  the  public 
good,  but  the  Government  must  make  full  restitution  for  the  sacrifice.  U.  S.  v.  Rus- 
sell, 13  Wall.,  623,  629.  Beneficial  volunteer  service  does  not  raise  an  implied  con- 
tract, unless  there  has  been  an  inducement,  agreement,  or  ratification.  Boston  v.  The 
District  of  Columbia,  19  C.  Cls.  R.,  31.  The  court  has  jurisdiction  of  a  suit  by  a  pat- 
entee for  the  royalty  agreed  to  be  paid  for  the  use  of  his  invention  by  an  authorized 
officer  of  the  Government.  Burns  v.  U.  S.,  12  Wall.,  246. 

A  contract  is  implied  from  the  fact  that  the  Government  manufactured  a  patented 
military  device,  without  market  value,  on  the  solicitation  of  the  patentee,  that  it  should 
pay  for  the  right  to  use  the  invention.  Palmer  v.  U.  S.,  128  U.  S.,  262.  The  United 
States  mav  be  sued  for  use  of  a  patented  invention  by  its  officers  for  its  benefit  if  the 
right  of  the  patentee  is  acknowledged.  Hollisterv.  Benedict  Manufacturing  Co.,  113 
U.  S.,  59 ;  U.  S.  v.  Burns,  12  Wall.,  246.  When  an  officer  of  the  Government  is  properly 
assigned  to  the  work  of  devising  something  to  be  used  in  the  public  service,  the  Gov- 
ernment meeting  the  expenses  and  paying  the  officer  his  usual  salary,  the  Government 
is  not  liable  for  royalty  on  the  invention,  though  it  was  made  by  the  officer  previous 
to  the  time  he  was  assigned  to  the  work,  if  the  labor  and  expense  of  perfecting  it  was 
borne  by  the  Government.  Solomons  v.  U.  S.,  22  C.  Cls.  R.,335;  21  ibid.,  479.  The 
policy  of  the  War  Department  of  late  years  toward  inventors  has  been  one  of  neu- 
trality, neither  denying  nor  admitting  legal  rights,  but  taking  inventions  to  perfect 
the  Government  arms,  leaving  inventors  free  to  seek  redress  without  prejudice  be- 
fore other  tribunals  than  an  Executive  Department.  Berdan  v.  U.  S.,  26  C.  Cls.  R., 
48,  60.  See  also  Clyde  v.  U.  S.,  13  Wall.,  38;  U.  S.  v.  Russell,  13  Wall.,  623;  U.  S.  v. 
Bostwiek,  94  U.  S.,  53;  Fichera's  Case,  9  C.  Cls.  R.,  254;  Macauley's  Case,  11  C.  Cls. 
R.,  693;  Clark's  Case,  11  C.  Cls.  R.,  698;  Roman  etal.v.  U.  S.,  11  C.  Cls.  R.,  761;  Camp- 
bell's Case,  13  C.  Cls.  R.,  470. 

1  The  right  of  set-ofl'  did  not  exist  at  common  law,  and  is  everywhere  founded  upon 
statutory  regulation.  Tillou  v.  U.  S.,  1  C.  Cls.  R.,  454;  2  ibid.,  588,  and  U.  S.  v.  Eck- 
ford,  6  Wall.,  484.  State  laws  in  such  a  case  do  not  constitute  the  rule  of  decision, 
but  the  question  arises,  exclusively,  under  the  act  of  Congress ;  and  no  local  law  nor 
usage  can  have  any  influence  in  its  determination.  Ibid.;  Reeside v.  Walker,  11 
How.,  272, 290. 


112  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

relief  from  responsibility  on  account  of  capture  or  other- 
wise, while  in  the  line  of  his  duty,  of  Government  funds, 
vouchers,  records,  or  papers  in  his  charge,  and  for  which 
such  officer  was  and  is  held  responsible.1 

claims  for  cap-     Fourth.  Of  all  claims  for  the  proceeds  of  captured  or 

doffed  property0  abandoned  property,  as  provided  by  the  act  of  March  12, 

c.  120,'e.1!1,  v8i2!  eighteen  hundred  and  sixty-three,  chapter  one  hundred 

i86482c.;225^8.2;  and  twenty,  entitled  uAn  act  to  provide  for  the  collection 

STG^J  u3iy27,i868',  of  abandoned  property  and  for  the  prevention  of  frauds  in 

P.  243!  8'  3>  v>  15'  insurrectionary  districts  Avithiu  the  United  States,"  or  by 

the  act  of  July  two,  eighteen  hundred  and  sixty-four,  chap- 

ter two  hundred  and  twenty-five,  being  an  act  in  addition 

thereto:  Provided,  That  the  remedy  given  in  cases  of  seiz- 

ure under  the  said  acts,  by  preferring  claim  in  the  Court  of 

Claims,  shall  be  exclusive,  precluding  the  owner  of  any 

property  taken  by  agents  of  the  Treasury  Department  as 

abandoned  or  captured  property  in  virtue  or  under  color  of 

said  acts  from  suit  at  common  law,  or  any  other  mode  of 

redress  whatever,  before  any  court  other  than  said  Court 

of  Claims.2 

^  petitions  and  bills  praying  or  providing  for  the 


when  transmit  satisfaction  of  private  claims   against  the  Government, 

ted  to    Court  of 

claims.  founded  upon  any  law  of  Congress,  or  upon  any  regulation 

02,8.  2,  V.  12,'  pi  of  an  Executive  Department,  or  upon  any  contract,  ex- 

pressed or  implied,  with  the  Government  of  the  United 

Sec  1060  R  S 

'  States,  shall,  unless  otherwise  ordered  by  resolution  of  the 

1  Under  this  provision  relief  has  been  afforded  to  a  paymaster  who  was  attacked 
and  robbed  by  highwaymen.  Broadhead  v.  U.  S.,  19  C.  Cls.  R.,  125.  To  a  disbursing 
officer  for  loss  by  the  failure  of  a  national  bank,  which  was  a  designated  depository. 
Hobbs  v.  U.  S.,  17  ibid.  ,189.  To  a  disbursing  officer  for  money  stolen  from  a  safe. 
Scott  v.  IT.  S.,  18  ibid.,  1;  Clark  v.  U.  S.,  11  ibid.,  698;  Howell  v.  U.  S.,  7  ibid.,  512.  To 
a  quartermaster  for  money  lost  from  his  person,  the  money  being  carried  in  the  way 
such  officers  usually  carry  it  on  similar  occasions,  under  circumstances  utterly  free 
from  suspicion  and  after  diligent  efforts  had  been  made  to  recover  the  same.  Whit- 
tlesey  v.  U.  S.,  5  ibid.,  452.  To  a  quartermaster  for  money  stolen  from  his  room,  due 
precautions  for  its  safety  having  been  taken.  Malone  v.  U.  S.,  5  ibid.,  486;  Norton  v. 
U.  S.,  2  ibid  ,  523.  To  a  paymaster  for  money  contained  in  a  treasure  box  stolen  by 
soldiers  at  a  garrison.  Glenn  v.  TJ.  S.,  4  ibid.,  501.  To  an  engineer  officer  for  money 
captured  by  the  enemy.  Prince  v.  U.  S.,  3  ibid.,  209.  To  a  paymaster  for  funds  and 
vouchers  captured  by  the  enemy.  Ruggles  v.  U.  S.,  2  ibid.,  520  ;  Moore  v.  TJ.  S.,  ibid., 
522;  Beck  with  v.  TJ.  S.,  ibid.  ,526;  Hubbell  v.  TJ.  S.,  ibid.  ,527.  To  an  acting  commis- 
sary of  subsistence  for  money  expended,  the  expenditures  being  covered  by  vouchers 
captured  by  the  enemy.  Murphy  v.  TJ.  S.,  3  ibid.,  212. 

Relief  has  been  denied  to  a  paymaster  for  money  embezzled  by  a  clerk,  the  loss 
having  been  made  good  by  the  disbursing  officer,  under  pressure,  but  without  protest 
on  his  part.  Hallv.  U.  S.,'9  C.  Cls.  R.,  270.  In  the  case  of  a  paymaster  for  funds  stolen 
by  an  orderly  detailed  for  messenger  duty  in  his  office.  Holman  v.  TJ.  S.,  11  ibid.,  642. 
To  a  collector  of  revenue,  for  the  value  of  revenue  stamps  stolen  from  his  office,  dur- 
ing his  absence  therefrom,  said  collector  not  being  a  disbursing  officer  within  the 
meaning  of  the  statute.  Stapp  v.  U.  S.,  4  ibid.,  219.  To  an  acting  commissary  of  sub- 
sistence in  Dakota,  for  money  alleged  to  have  been  stolen,  no  testimony  having  been 
offered  in  the  case  but  his  own.  Pattee  v.  TJ.  S.,  3  ibid.,  397.  In  a  case  arising  under 
this  provision,  the  petitioner  is  a  competent  witness  to  prove  the  amount  of  money 
lost,  if  the  loss  itself  be  established  by  other  testimony.  TJ.  S.  v.  Clark,  96  TJ.  S.,  37; 
Hobbs  v.  TJ.  S.,  17  C.  Cls.  R.,  189  :  Scott  v.  TJ.  S.,  18  ibid.,  1  ;  Broadhead  v.  U.  S.,  19  ibid., 
125;  Hoyle  v.  TJ.  S.,  21  ibid.,  300.  An  acting  commissary  of  subsistence  is  entitled  to 
relief  under  the  provisions  of  this  statute,  and  it  is  not  necessary  that  the  officer 
should  have  given  a  bond  to  entitle  him  to  relief.  Wood  v.  TJ.  S.,  25  ibid.,  98.  It  was 
held  by  the  Supreme  Court  in  TJ.  S.  v.  Smith  (14  C.  Cls.  R.,  114,  and  105  U.  S.,  620)  that 
the  statute  of  limitation  applied  to  cases  arising  under  this  section.  See  also  TJ.  S. 
v.Clark,  98  U.S.,  37. 

>U.  S.  v.  Anderson,  9  Wall,,  56;  Pugh  v.  U.  S.,  13  Wall.,  633;  U.  S.  v.  Kimball,  13 
Wall.,  636;  U.  S.  v.  Crussell,  14  Wall.,  1;  Slawson  v.  U.  S.,  16  Wall.,  310. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  113 

House  in  which  they  are  introduced,  be  transmitted  by  the 
Secretary  of  the  Senate  or  the  Clerk  of  the  House  of  Rep- 
resentatives, with  all  the  accompanying  documents,  to  the 
Court  of  Claims. 

300.  Upon  the  trial  of  any  cause  in  which  any  set-off,  J[%jf^%£ll 
counter-claim,  claim  for  damages,  or  other  demand  is  setjjrcj*im'howen- 
up  on  the  part  of  the  Government  against  any  person  raak-  92Msar33'v18i62  '  c 
ing  claim  against  the  Government  in  said  court,  the  court  ™5- 

shall  hear  and  determine  such  claim  or  demand  both  for  see.ioei,n.s. 
and  against  the  Government  and  claimant;  and  if  upon  the 
whole  case  it  finds  that  the  claimant  is  indebted  to  the  Gov- 
ernment, it  shall  render  judgment  to  that  effect,  and  such 
judgment  shall  be  final,  with  the  right  of  appeal,  as  in  other 
cases  provided  for  by  law.  Any  transcript  of  such  judg- 
ment, filed  in  the  clerk's  office  of  any  district  or  circuit 
court,  shall  be  entered  upon  the  records  thereof,  and  shall 
thereby  become  and  be  a  judgment  of  such  court  and  be 
enforced  as  other  judgments  in  such  courts  are  enforced.1 

301.  Whenever  the  Court  of  Claims  ascertains  the  facts    Decree  on  ac- 

counts   ot   pay- 
of  any  loss  by  any  paymaster,  quartermaster,  commissary  Casters,  etc. 

of  subsistence,  or  other  disbursing  officer,  in  the  cases  here-  75,s.2,v.'i4,P!'44l 
inbefore  provided,  to  have  been  without  fault  or  negligence   sec.  1002,  B.  s. 
on  the  part  of  such  officer,  it  shall  make  a  decree  setting 
forth  the  amount  thereof,  and  upon  such  decree  the  proper 
accounting  officers  of  the  Treasury  shall  allow  to  such  officer 
the  amount  so  decreed,  as  a  credit  in  the  settlement  of  his 
accounts. 

302.  Whenever  any  claim  is  made  against  any  Executive  b 
Department,  involving  disputed  facts  or  controverted  ques-   ' 

J  71, 

tions  of  law,  where  the  amount  in  controversy  exceeds 


10<**{    R   W 

three  thousand  dollars,  or  where  the  decision  will  affect  a 
class  of  cases,  or  furnish  a  precedent  for  the  future  action  of 
any  Executive  Department  in  the  adjustment  of  a  class 
of  cases,  without  regard  to  the  amount  involved  in  the 
particular  case,  or  where  any  authority,  right,  privilege,  or 
exemption  is  claimed  or  denied  under  the  Constitution  of 
the  United  States,  the  head  of  such  Department  may  cause 
such  claim,  with  all  the  vouchers,  papers,  proofs,  and  docu- 
ments pertaining  thereto,  to  be  transmitted  to  the  Court  of 
Claims,  and  the  same  shall  be  there  proceeded  in  as  if 
originally  commenced  by  the  voluntary  action  of  the  claim- 
ant; and  the  Secretary  of  the  Treasury  may,  upon  the 
certificate  of  any  Auditor  or  Comptroller  of  the  Treasury, 
direct  any  account,  matter,  or  claim,  of  the  character, 


i  Allen  v.  U.  S.,  17  Wall.,  207. 

1919 8 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

amount,  or  class  described  in  this  section,  to  be  trans. 
mitted,  with  all  the  vouchers,  papers,  documents,  and  proofs 
pertaining  thereto,  to  the  said  court,  for  trial  and  adjudica- 
tion :  Provided,  That  no  case  shall  be  referred  by  any  head 
of  a  Department  unless  it  belongs  to  one  of  tbe  several 
classes  of  cases  which,  by  reason  of  tbe  subject-matter  and 
character,  the  said  court  might,  under  existing  laws,  take 
jurisdiction  of  on  such  voluntary  action  of  the  claimant. 

Procedure  in  303.  All  cases  transmitted  by  the  head  of  any  Depart- 
ted  by  Depart-  ment,  or  upon  the  certificate  of  any  Auditor  or  Comptroller, 

j  une  25,  1868,  c.  according  to  the  provisions  of  the  preceding  section,  shall 

71,  8.  7,  v.  15,  p.  76.  •        .  ..,        f, 

be  proceeded  in  as  other  cases  pending  in  the  Court  of 
'  Claims,  and  shall,  in  all  respects,  be  subject  to  the  same 
rules  and  regulations.1 

casef  gTr^8mit-     304>  Tne  amount  of  any  final  judgment  or  decree  ren- 
mentsyhowepaid  dered  in  favor  of  the  claimant,  in  any  case  transmitted  to 
7]J8U'Tv5i5186876'  ^ne  Court  °f  Claims  under  the  two  preceding  sections,  shall 
sec  1065  R  s  be  Paid  out  of  any  sPecinc  appropriation  applicable  to  the 
case,  if  any  such  there  be;  and  where  no  such  appropria- 
tion exists,  the  judgment  or  decree  shall  be  paid  in  the 
same  manner  as  other  judgments  of  the  said  court. 
ing^uTof8™^-     30^  Tlie  jurisdiction  of  the  said  court  shall  not  extend 
bie8thereingniza  *°  ^^  claim  against  the  Government  not  pending  therein 


92  c.  on  December  one,  eighteen  hundred  and  sixty-two,  grow- 

767.  ing  out  of  or  dependent  on  any  treaty  stipulation  entered 

sec.  loee,  K.s-into  with  foreign  nations  or  with  the  Indian  tribes. 

Jther     306t  -^0  Person  sna11  file  or  prosecute  in  the  Court  of 


ro  ecu  ted  in  Claims,  or  i11  ^ue  Supreme  Court  on  appeal  therefrom,  any 
Court  of  claims,  claim  for  or  in  respect  to  which  he  or  any  assignee  of  his 

J  une  25,  looo,  c. 

71,  s.  s,  v.  15,  p.  77.  has  pending  in  any  other  court  any  suit  or  process  against 

„  sec.  1067,  E.  s.  any  person  who,  at  the  time  when  the  cause  of  action  al- 

leged in  such  suit  or  process  arose,  was,  in  respect  thereto, 

acting  or  professing  to  act,  mediately  or  immediately,  under 

the  authority  of  the  United  States. 

Aliens.  307.  Aliens,  who  are  citizens  or  subjects  of  any  govern- 

c.  m,  s.  2'  v.  15',  ment  which  accords  to  citizens  of  the  United  States  the 

^  '  right  to  prosecute  claims  against  such  government  in  its 

'courts,   shall   have  the  privilege  of  prosecuting  claims 

against  the  United  States  in  the  Court  of  Claims,  whereof 

such  court,  by  reason  of  their  subject-matter  and  charac- 

ter, might  take  jurisdiction.2 

^imitatjoru  ^      308,  Every  claim  against  the  United  States,  cognizable 

92,  s.  10,  V.  12,'  p.  by  the  Court  of  Claims,  shall  be  forever  barred  unless  the 

petition  setting  forth  a  statement  thereof  is  filed  in  the 

Sec.  1069,  R.S.  court?  or  transmitted  to  it  by  the  Secretary  of  the  Senate 

i  Clyde  v.  U.  S.,  13  Wall.,  38. 

JTL  S.  v,  O'Keefe,  11  Wall.,  178;  Carlisle  v.  U.  S.,  16  Wall.,  147. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  115 

or  the  Clerk  of  the  House  of  Representatives  as  provided 
by  law,  within  six  years  after  the  claim  first  accrues:  Pro- 
vided, That  the  claims  of  married  women  first  accrued  dur- 
ing marriage,  of  persons  under  the  age  of  twenty-one  years 
first  accrued  during  minority,  and  of  idiots,  lunatics,  insane 
persons,  and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred  if  the 
petition  be  filed  in  the  court  or  transmitted,  as  aforesaid, 
within  three  years  after  the  disability  has  ceased;  but  no 
other  disability  than  those  enumerated  shall  prevent  any 
claim  from  being  barred,  nor  shall  any  of  the  said  disabili- 
ties operate  cumulatively. 

309.  The  said  court  shall  have  power  to  establish  rules  .Rules  of  prac- 

tice; contempts. 

for  its   government  and    for  the  regulation   of  practice    Feb.  24, 1355,  c. 
therein,  and  it  may  punish  for  contempt  in  the  manner  613';  Mar.  3,  iscs, 

./,,,,  ,  -    •    -,  .      .          c.92,  s.  4,  v.  12,  p. 

prescribed  by  the  common  law,  may  appoint  commission- 765. 

ers,  and  may  exercise  such  powers  as  are  necessary  to    sec.i070,R.s. 

carry  into  effect  the  powers  granted  to  it  by  law. 

310.  The  judges  and  clerks  of  said  court  may  administer 
oaths  and  affirmations,  take  acknowledgments  of  instru- 

ments  in  writing,  and  give  certificates  of  the  same.  sec.io7i,R.s. 

311.  The  claimant  shall,  in  all  cases,  fully  set  forth  in    ^"risss  c 
his  petition  the  claim,  the  action  thereon  in  Congress,  or  122, 8^M^ \jyj- 
by  any  of  the  Departments,  if  such  action  has  been  had;  c.  Q'^S.  12, V.  12,' 
what  persons  are  owners  thereof  or  interested  therein, 

when  and  upon  what  consideration  such  persons  became  ! 
so  interested;  that  no  assignment  or  transfer  of  said 
claim,  or  of  any  part  thereof  or  interest  therein,  has  been 
made,  except  as  stated  in  the  petition ;  that  said  claimant 
is  justly  entitled  to  the  amount  therein  claimed  from  the 
United  States,  after  allowing  all  just  credits  and  off-sets; 
that  the  claimant,  and,  where  the  claim  has  been  assigned, 
the  original  and  every  prior  owner  thereof,  if  a  citizen, 
has  at  all  times  borne  true  allegiance  to  the  Government 
of  the  United  States,  and,  whether  a  citizen  or  not,  has 
not  in  any  way  voluntarily  aided,  abetted,  or  given  encour- 
agement to  rebellion  against  the  said  Government,  and 
that  he  believes  the  facts  as  stated  in  the  said  petition  to 
be  true.  And  the  said  petition  shall  be  verified  by  the 
affidavit  of  the  claimant,  his  agent,  or  attorney.1 

312.  The  said  allegations  as  to  true  allegiance  and  vol-    P61^10.^  . dis- 

missed   if    issue 

untary  aiding,  abetting,  or  giving;  encouragement  to  rebel- found  against 

,.  ..     .  claimant  as  to  al- 

hon  against  the  Government  may  be  traversed  by  the  legiance,  etc. 
Government,  and  if  on  the  trial   such  issues  shall  be  92, 3^12!' \\il]  pi 
decided  against  the  claimant,  his  petition  shall  be  dis- 767t 
missed.  Sec.  1073,  R.S. 


'U.  S.  v.  Insurance  Companies,  22  Wall. ,99. 


116  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Burden  of  proof     313   Whenever  it  is  material  in  any  claim  to  ascertain 

and  evidence  as 

wne^ner  auv  person  did  or  did  not  give  any  aid  or  comfort 


C^TI,  s.  3,  v.  15,  pi  to  the  late  rebellion,  the  claimant  asserting  the  loyalty  of 
any  such  person  to  the  United  States  during  such  rebellion 
shall  be  required  to  prove  affirmatively  that  such  person 
did,  during  said  rebellion,  consistently  adhere  to  the  United 
States,  and  did  give  no  aid  or  comfort  to  persons  engaged 
in  said  rebellion;  and  the  voluntary  residence  of  any  such 
person  in  any  place  where,  at  any  time  during  such  resi- 
dence, the  rebel  force  or  organization  held  sway,  shall  be 
prirna-facie  evidence  that  such  person  did  give  aid  and 
comfort  to  said  rebellion  and  to  the  persons  engaged  therein. 
to0™"*81?™"  314<  The  Courfc  of  Claims  shall  have  power  to  appoint 
™^'  OA  commissioners  to  take  testimonv  to  be  used  in  the  investi- 

±<et).  ^4,  looo,  c. 

er1  8MarV3  YsoS'  g3^011  of  claims  which  come  before  it;  to  prescribe  the  fees 

c.92,  s.  4,  V.1  12,  pi  which  they  shall  receive  for  their  services,  and  to  issue 

commissions  for  the  taking  of  such  testimony,  whether 

'  taken  at  the  instance  of  the  claimant  or  of  the  United 

States. 

Power  to  call     315   The  said  court  shall  have  power  to  call  upon  any  of 

upon     Depart- 


. 

for  in  for-  the  Departments  for  any  information  or  papers  it  may  deem 
Feb.  24,  1855,  c.  necessary,  and  shall  have  the  use  of  all  recorded  and  printed 

122,  8.  11,  v.  10,  p.  •*  ' 

614.  reports  made  by  the  committees  of  each  House  of  Congress, 

sec.  1076,  R.S.  when  deemed  necessary  in  the  prosecution  of  its  business. 
But  the  head  of  any  Department  may  refuse  and  omit  to 
comply  with  any  call  for  information  or  papers  when,  in  his 
opinion,  such  compliance  would  be  injurious  to  the  public 
interest. 

to^be^take^     316t  Wnen  &  appears  to  the  court  in  any  case  that  the 

WFeb'  24  1855  c  ^ac^s  se^  f°rth  in  the  petition  of  the  claimant  do  not  furnish 

122,  s.  4,  V.  10,'  p.  any  ground  for  relief,  it  shall  not  be  the  duty  of  the  court 

s'ec.  1077,  R.S.  to  authorize  the  taking  of  any  testimony  therein. 

witnesses  not     317.  No  witness  shall  be  excluded  in  any  suit  in  the  Court 

excluded  on  ac- 

count of  color.     of  Claims  on  account  of  color.1 

July  2,  1864,  c.  210,  s.  3,  v.  13,  p.  351  ;  Mar.  2,  1867,  c.  166,  s.  2, 
v.  14,  p.  457  ;  June  25,  1868,  c.  71,  s.  4,  v.  15,  p.  75.    Sec.  1078,  R.  S. 

jE^amiaationof     3ig.  The  court  may,  at  the  instance  of  the  attorney  or 

Mar.  3,'  mi,  c.  solicitor  appearing  in  behalf  of  the  United  States,  make  an 

766';  Ji7ne  '25,'  order  in  any  case  pending  therein,  directing  any  claimant 

1868,  c.  71,  8.  4,  v.  .  ,  .  „ 

15,  p.  75.  in  such  case  to  appear,  upon  reasonable  notice,  before  any 

sec.  loso,  R.  s.  commissioner  of  the  court,  and  be  examined  on  oath  touch- 
ing any  or  all  matters  pertaining  to  said  claim.  Such 
examination  shall  be  reduced  to  writing  by  the  said  com- 
missioner, and  be  returned  to  and  filed  in  the  court,  and 
may,  at  the  discretion  of  the  attorney  or  solicitor  of  the 

i  Section  1079,  Revised  Statutes,  repealed  by  section  8,  act  of  March  3,  1887.    (24  Stat. 
L.,  505.)    See  also  Coruett  v.  Williams,  20  Wall.,  226;  Wood's  Case,  10  C.  Cls.  R.,  395- 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  117 

United  States  appearing  in  the  case,  be  read  and  used  as 
evidence  on  the  trial  thereof.  And  if  any  claimant,  after 
such  order  is  made  and  due  and  reasonable  notice  thereof 
is  given  to  him,  fails  to  appear,  or  refuses  to  testify  or 
answer  fully  as  to  all  matters  within  his  knowledge  material 
to  the  issue,  the  court  may,  in  its  discretion,  order  that  the 
said  cause  shall  not  be  brought  forward  for  trial  until  he 
shall  have  fully  complied  with  the  order  of  the  court  in  the 
premises.1 

319.  The  testimony  in  cases  pending  before  the  Court  of 
Claims  shall  be  taken  in  the  county   where  the  witness  depo 

.,  ,,  ,  •       AT      j  Feb.  24,  1855,  c. 

resides,  when  the  same  can  be  conveniently  done.    122,8.  a,v.  10,  P.6i3. 

320.  The  Court  of  Claims  may  issue  subpoenas  to  require  ' 


the  attendance  of  witnesses  in  order  to  be  examined  before  compelled  to  at- 

t©nu   uctorc  com- 

any  person  commissioned  to  take  testimony  therein,  and  ^UbTITjgsj  c 
such  subpoenas  shall  have  the  same  force  as  if  issued  from  122.  s-  3-  v.  io,'p. 
a  district  court,  and  compliance  therewith  shall  be  com-    Sec<1082  B§St 
pelled  under  such  rules  and  orders  as  the  court  shall 
establish. 

321.  In  taking  testimony  to  be  used  in  support  of  any   cross  examina- 
claim,  opportunity  shall  be  given  to  the  United  States  to    r^b.  24,1895,0. 
file  interrogatories,  or  by  attorney  to  examine  witnesses,  III'.  s'  5'  v'10'  p' 
under  such  regulations  as  said  court  shall  prescribe  ;  and    sec.i083,B.s. 
like  opportunity  shall  be  afforded  the  claimant,  in  cases 

where  testimony  is  taken  on  behalf  of  the  United  States, 
under  like  regulations. 

322.  The  commissioner  taking  testimony  to  be  used  in  the    witnesses.how 
Court  of  Claims  shall  administer  an  oath  or  affirmation  to    Feb  24  1855  c 
the  witnesses  brought  before  him  for  examination.    122>  s-  3-  v'Seclio8413R.s. 

323.  When  testimony  is  taken  for  the  claimant,  the  fees    Fees  of  com- 
of  the  commissioner  before  whom  it  is  taken,  and  the  cost  of  whom  TOM!  r'  y 
the  commission  and  notice,  shall  be  paid  by  such  claimant;  i22,es.'3,  V.  lo/p- 
and  when  it  is  taken  at  the  instance  of  the  Government,61 

such  fees,   together    with  all    postage   incurred  by  the    Sec'1085»B-s- 
Assistant  Attorney-General,  shall  be  paid  out  of  the  con- 
tingent fund  provided  for  the  .Court  of  Claims  or  other 
appropriation  made  by  Congress  for  that  purpose. 

324.  Any  person  who  corruptly  practices  or  attempts  to    claims  forfeit- 
practice  any  fraud  against  the  United  States  in  the  proof,    i£.  a,  isss,  c. 
statement,  establishment,  or  allowance  of  any  claim,  or  of  ?67.s'  n'  v'  12'  p' 
any  part  of  any  claim  against  the  United  States,  shall  ipso    Sec.io86,u.s. 
facto  forfeit  the  same  to  the  Government;  and  it  shall  be 

the  duty  of  the  Court  of  Claims,  in  such  cases,  to  find 
specifically  that  such  fraud  was  practiced  or  attempted  to 
be  practiced,  and  thereupon  to  give  judgement  that  such 

•Macauley's  Caae,  11  C.  Cls.  R.,  575. 


118  THE   MILITARY    LAWS   OF   THE    UNITED    STATES. 

claim  .is  forfeited  to  the  Government,  and  that  the  claimant 
be  forever  barred  from  prosecuting  the  same. 
New  trial  on     325,  When  judgment  is  rendered  against  any  claimant, 

motion  of  claim-  . 

ant.  the  court  may  grant  a  new  trial  for  any  reason  which,  by 

Feb.  24,  1855,  c.  J   *  .     J     .,      _ 

122,  s.  9,  v.  10,  p.  the  rules  of  common  law  or  chancery  in  suits  between  indi- 
„  viduals,  would  furnish  sufficient  ground  for  granting  a  new 

OCC.  11)34,  K.N. 

trial. 
New  trial  on     326.  The  Court  of  Claims,  at  any  time  while  any  claim  is 

motion  of  United 

states.  pending  before  it.  or  on  appeal  from  it,  or  within  two  years 

Juno  25,  1868,  c. 

71,  s.  2,  v.  15,  p.  next  alter  the  final  disposition  of  such  claim,  may,  on 
motion  on  behalf  of  the  United  States,  grant  a  new  trial 
'88,R.s.  e  payment  of  any  judgment  therein,  upon  such 


evidence,  cumulative  or  otherwise,   as   shall  satisfy  the 
court  that  any  fraud,  wrong,  or  injustice  in  the  premises 
has  been  done  to  the  United  States,-  but  until  an  order  is 
made  staying  the  payment  of  a  judgment,  the  same  shall 
be  payable  and  paid  as  now  provided  by  law.1 
°f     327.  In  all  cases  of  final  judgments  by  the  Court  of 
'Ti863,  c.  Claims,  or,  on  appeal,  by  the  Supreme  Court,  where  the  same 
76G.8' ?<  v' 12'  p'  are  affirmed  in  favor  of  the  claimant,  the  sum  due  thereby 
sec.  1089, R.S.  shall  be  paid  out  of  any  general  appropriation  made  by  law 
for  the  payment  and  satisfaction  of  private  claims,  on  pre- 
sentation to  the  Secretary  of  the  Treasury  of  a  copy  of 
said  judgment,  certified  by  the  clerk  of  the  Court  of  Claims, 
and  signed  by  the  chief  justice,  or,  in  his  absence,  by  the 
presiding  judge  of  said  court. 

interest.  328.  In  cases  where  the  judgment  appealed  from  is  in 

92  Sar7,'v.  12,'  p!  favor  of  the  claimant,  and  the  same  is  affirmed  by  the 
Supreme  Court,  interest  thereon  at  the  rate  of  five  per 
sec.  1090,  R.s.cenj-Uni  shall  be  allowed  from  the  date  of  its  presentation 
to  the  Secretary  of  the  Treasury  for  payment  as  aforesaid, 
but  no  interest  shall  be  allowed  subsequent  to  the  affirm- 
ance, unless  presented  for  payment  to  the  Secretary  of  the 
Treasury  as  aforesaid. 

claims6™ st  °n  329-  No  interest  shall  be  allowed  on  any  claim  up  to  the 
92M8ar73v18r>}'p'  ^me  °f  ^ne  rendition  of  judgment  thereon  by  the  Court  of 
706.  Claims,  unless  upon  a  contract  expressly  stipulating  for 

sec. looi, R.S.  £ne  payment  of  interest. 

•uc^mJnt^a  fun  ***^'  ^ne  PaYmen^  of  the  amount  due  by  any  judgment 
discharge, etc.  of  tli e  Court  of  Claims  and  of  any  interest  thereon  allowed 

Mar.  3,  1863,  c.  ,        ,  ,  .     ,      _  „    ,,     , . 

92,s.7,v.i2,p.766.  by  law,  as  hereinbefore  provided,  shall  be  a  full  discharge 

sec.  1092, R.S.  to  the  United  States  of  all  claim  and  demand  touching  any 

of  the  matters  involved  in  the  controversy. 

mStsabar1*1*5"     *^'  ^n^  ^USi^  judgment  against  the  claimant  on  any 

Mar.  3, 1863,  c.  claim  prosecuted  as  provided  in  this  chapter  shall  forever 

bar  any  further  claim  or  demand  against  the  United  States 

Sec*1093'B<s*  arising  out  of  the  matters  involved  in  the  controversy. 


Exparte  Russell,  13  Wall.,  664;  Ex  parte,  in  matter  of  U.  S.,  16  Wall.,  699. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  119 

332,  Whenever  a  claim  or  matter  is  pending  before  any 


committee  of  the  Senate  or  House  of  Bepresentatives,  or  congress  invoiv 

A  ing  investigation 

before  either  House  of  Congress,  which  involves  the  inves-  to  be  referred  to 

Court  of  Claims. 

tigation  and  determination  of  facts,  the  committee  or  house    sec.  i,  Mar.  3, 

.,.,.'  .  ,  1883,  v.  22,  p.  485. 

may  cause  the  same,  with  the  vouchers,  papers,  proofs,  and 
documents  pertaining  thereto,  to  be  transmitted  to  the 
Court  of  Claims  of  the  United  States,  and  the  same  shall 
there  be  proceeded  in  under  such  rules  as  the  court  may 
adopt.  When  the  facts  shall  have  been  found,  the  court 
shall  not  enter  judgment  thereon,  but  shall  report  the  same 
to  the  committee  or  to  the  house  by  which  the  case  was 
transmitted  for  its  consideration.  Sec.  1,  act  of  March  «?, 
1883  (22  Stat.  L.,  485}. 

333,  That  when  a  claim  or  matter  is  pending  in  any  of   certain  claims 

J         pending    in    Ex- 

the  executive  departments  which  may  involve  controverted  eeutive  Depart- 
questions  of  fact  or  law,  the  head  of  such  Department  may  transmitted  etc.6 

.,    ,,  ..,     ^i  i  /»  ->  to     Court     of 

transmit  the  same,  with  the  vouchers,  papers,  proofs,  and  claims. 
documents  pertaining  thereto,  to  said  court,  and  the  same 
shall  be  there  proceeded  in  under  such  rules  as  the  court 
may  adopt.  When  the  facts  and  conclusions  of  law  shall 
have  been  found,  the  court  shall  not  enter  judgment 
thereon,  but  shall  report  its  findings  and  opinions  to  the 
department  by  which  it  was  transmitted  for  its  guidance 
and  action.1  Sec.  2,  ibid. 

334,  The  jurisdiction  of  said  court  shall  not  extend  to  0*>^ 
include  any  claim  against  the  United  States  growing  out  tion  of  court. 
of  the  destruction  or  damage  to  property  by  the  Army  or 

Navy  during  the  war  for  the  suppression  of  the  rebellion, 
or  for  the  use  and  occupation  of  real  estate  by  any  part  of 
the  military  or  naval  forces  of  the  United  States  in  the 
operations  of  said  forces  during  the  said  war  at  the  seat  of 
war;  nor  shall  the  said  court  have  jurisdiction  of  any  claim 
against  the  United  States  which  is  now  barred  by  virtue 
of  the  provisions  of  any  law  of  the  United  States.  Sec.  3, 
ibid. 

335,  In  any  case  of  a  claim  for  supplies  or  stores  takenplcJ8aimesJorsf^P; 
by  or  furnished  to  any  part  of  military  or  naval  forces  of  nj.jgffonlojf  8{J[J; 
the  United  States  for  their  use  during  the  late  war  for  the  rebellion. 
suppression  of  the  rebellion,  the  petition  shall  aver  that 

the  person  who  furnished  such  supplies  or  stores,  or  from 

whom  such  supplies  or  stores  were  taken,  did  not  give  any 

aid  or  comfort  to  said  rebellion,  but  was  throughout  that 

war  loyal  to  the  government  of  the  United  States,  and  the 

fact  of  such  loyalty  shall  be  a  jurisdictional  fact;  and  un-    Loyalty  to  bea 

less  the  said  court  shall,  on  a  preliminary  inquiry,  find  that  fact8 

'Where  claims  are  referred  by  the  head  of  an  Executive  Department,  of  his  own 
motion,  and  without  the  consent  of  the  claimant,  the  court  will  take  jurisdiction 
under  the  Bowman  Act,  Billings  v.  U.  S.,  23  C.  Cls.  K.,  166,  175. 


120  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  person  who  furnished  such  supplies  or  stores,  or  from 
whom  the  same  were  taken  as  aforesaid,  was  loyal  to  the 
Government  of  the  United  States  throughout  said  war,  the 
court  shall  not  have  jurisdiction  of  such  cause,  and  the  same 
shall,  without  further  proceedings,  be  dismissed.  Sec.  4, 
ibid. 
Defense,  etc.,  336.  That  the  Attorney-General  or  his  assistants,  under 

for    the    United     . 

states.  his  direction,  shall  appear  for  the  defense  and  protection 

of  the  interests  of  the  United  States  in  all  cases  which 
may  be  transmitted  to  the  Court  of  Claims  under  this  act, 
with  the  same  power  to  interpose  counter-claims,  offsets, 
defenses  for  fraud  practiced  or  attempted  to  be  practiced 
by  claimants,  and  other  defenses,  in  like  manner  as  he  is 
now  required  to  defend  the  United  States  in  said  court. 
Sec.  5,  ibid. 
Parties  in  in-  337.  That  in  the  trial  of  such  cases  no  person  shall  be 

terest    may   tes- 
tify, etc.  excluded  as  a  witness  because  he  or  she  is  a  party  to  or 

interested  in  the  same.     Sec.  6,  ibid. 
Reports   of     338.  That  reports  of  the  Court  of  Claims  to  Congress 

Court  of  Claims          1,1.  .     •«»        <   A       11  i  -, 

may  be  contin-  under  this  act,  it  not  nrially  acted  upon  during  the  session 
Son.  et         lc  at  which  they  are  reported,  shall  be  continued  from  session 
5ec.7,i6id.       ^Q  sessjon  au(j  from  Congress  to  Congress  until  the  same 
shall  be  finally  acted  upon.1     Sec.  7,  ibid. 

339f  Tkat  tbe  Court  of  Claims  shall  have  jurisdiction  to 
hear  and  determine  the  following  matters: 
jurisdiction  of     First.  All  claims  founded  upon  the  Constitution  of  the 

Court  of  Claims.  TT    . 

R.  s.,  aec.ioss,  United  States2  or  any  law  of  Congress,  except  for  pensions, 
p'Mar.3,i887,  v.  or  upon  any  regulation  of  an  Executive  Department,  or 
upon  any  contract,  expressed  or  implied,  with  the  Govern- 
ment of  the  United  States,  or  for  damages,  liquidated  or 
unliquidated,  in  cases  not  sounding  in  tort,  in  respect  of 
which  claims  the  party  would  be  entitled  to  redress  against 
the  United  States  either  in  a  court  of  law,  equity,  or  adini- 

proviso.  ralty  if  the  United  States  were  suable:  Provided,  however, 
That  nothing  in  this  section  shall  be  construed  as  giving 
to  either  of  the  courts  herein  mentioned,  jurisdiction  to 
hear  and  determine  claims  growing  out  of  the  late  civil 

"War "and re- war,  and  commonly  known  as  "war  claims,"  or  to  hear 
cepted.ca  x  and  determine  other  claims,  which  have  heretofore  been 

1  Paragraphs  332  to  338,  inclusive,  constitute  tbe  Bowman  Act  (22  Stat.  L.,  485). 

2  Tbe  clause  giving  tbe  Court  of  Claims  jurisdiction  of  claims  founded  upon  tbe 
Constitution  of  the  United  States  gives  tbe  court  jurisdiction  over  obligations  arising 
out  of  the  occupation  or  taking  of  real  property.    Stovall  v.  U.  S.,  26  C.  Cls.  R.,  226. 
A  distinction  exists  between  property  used  for  Government  purposes  and  property 
destroyed  for  the  public  safety.    If  the  conditions  admitted  of  it  being  acquired  by 
contract  and  used  for  the  benefit  of  the  Government,  it  may  be  regarded  as  acquired 
under  an  implied  contract;  but  if  the  taking,  using,  or  occupying  was  in  the  nature 
of  destruction  for  the  general  welfare,  or  incident  to  tbe  ravages  of  war,  and  whether 
brought  about  by  casualty  or  by  authority,  and  whether  on  hostile  or  national  ter- 
ritory, the  loss  (i'n  the  absence  of  positive  legislation)  must  be  borne  by  him  upon 
whom  it  falls.    Hefleblower  v.  U.  S.,  21  C.  Cls.  K.,  228. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      121 

rejected,  or  reported  on  adversely  by  any  court,  Depart- 
ment, or  commission  authorized  to  hear  and  determine  the 
same. 

Second.  All  set-offs,  counter-claims,  claims  for  damages,    set-offs,  coun- 
whether  liquidated  or    unliquidated,   or  other  demands  terclaims» etc- 
whatsoever  on  the  part  of  the  Government  of  the  United 
States  against  any  claimant  against  the  Government  in 
said  court:  Provided.  That  no  suit  against  the  Government    Proviso. 

Limitation. 

of  the  United  States,  shall  be  allowed  under  this  act  unless 
the  same  shall  have  been  brought  within  six  years  after 
the  right  accrued  for  which  the  claim  is  made.  Act  of 
March  3,  1887,  v.  24,  p.  505. 

340.  That  the  district  courts  of  the  United  States  shall  .District  and 
have  concurrent  jurisdiction  with  the  Court  of  Claims  as  have  concurrent 

,,  ,     .        ,,  ,.  ..  ,  .,      jurisdiction  with 

to  all  matters  named  in  the  preceding  section  where  the  court  of  claims; 
amount  of  the  claim  does  not  exceed  one  thousand  dollars,    sec.  2,  md. 
and  the  circuit  courts  of  the  United  States  shall  have  such 
concurrent  jurisdiction  in  all  cases  where  the  amount  of 
such  claim   exceeds  one  thousand   dollars   and  does  not 
exceed  ten  thousand  dollars.    All  causes  brought  and  tried 
under  the  provisions  of  this  act  shall  be  tried  by  the  court 
without  a  jury.     Sec.  2,  ibid. 

341.  That  whenever  any  person  shall  present  his  peti-    Petitions  for 
tion  to  the  Court  of  Claims  alleging  that  he  is  or  has  been  ctai  bond, 
indebted  to  the  United  States  as  an  officer  or  agent  thereof, 

or  by  virtue  of  any  contract  therewith,  or  that  he  is  the 
guarantor,  or  surety,  or  personal  representative  of  any 
officer,  or  agent,  or  contractor  so  indebted,  or  that  he,  or 
the  person  for  whom  he  is  such  surety,  guarantor,  or  per- 
sonal representative  has  held  any  office  or  agency  under 
the  United  States,  or  entered  into  any  contract  therewith, 
under  which  it  may  be  or  has  been  claimed  that  an  indebt- 
edness to  the  United  States  has  arisen  and  exists,  and  that 
he  or  the  person  he  represents  has  applied  to  the  proper 
Department  of  the  Government  requesting  that  the  account 
of  such  office,  agency,  or  indebtedness  may  be  adjusted 
and  settled,  and  that  three  years  have  elapsed  from  the 
date  of  such  application  and  said  account  still  remains 
unsettled  and  unadjusted,  and  that  no  suit  upon  the  same 
has  been  brought  by  the  United  States,  said  court  shall, 
due  notice  first  being  given  to  the  head  of  said  Depart- 
ment and  to  the  Attorney -General  of  the  United  States,* 
proceed  to  hear  the  parties  and  to  ascertain  the  amount, 
if  any,  due  the  United  States  on  said  account.  The  Attor- 
ney-General shall  represent  the  United  States  at  the  hear- 
ing of  said  cause.  The  court  may  postpone  the  same  from 


122 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Judgment 


Limitation. 


Juri  sdiction 
and  procedure. 
Sec.  4,  ibid. 


Petition  for 
settlement  of 
claims. 

Sec.  5,  ibid. 


Service. 
Sec.  6,  ibid. 


Defense. 


time  to  time  whenever  justice  shall  require.  The  j  udgment 
of  said  court  or  of  the  Supreme  Court  of  the  United  States, 
to  which  an  appeal  shall  lie,  as  in  other  cases,  as  to  the 
amount  due,  shall  be  binding  and  conclusive  upon  the  par- 
ties. The  payment  of  such  amount  so  found  due  by  the 
court  shall  discharge  such  obligation.  An  action  shall 
accrue  to  the  United  States  against  such  principal,  or 
surety,  or  representative  to  recover  the  amount  so  found 
due,  which  may  be  brought  at  any  time  within  three  years 
after  the  final  judgment  of  said  court.  Unless  suit  shall  be 
brought  within  said  time,  such  claim  and  the  claim  on  the 
original  indebtedness  shall  be  forever  barred.  Sec.  .3,  ibid. 

342.  That  the  jurisdiction  of  the  respective  courts  of  the 
United  States  proceeding  under  this  act,  including  the  right 
of  exception  and  appeal,  shall  be  governed  by  the  law  now 
in  force,  in  so  far  as  the  same  is  applicable  and  not  incon- 
sistent with  the  provisions  of  this  act;  and  the  course  of 
procedure  shall  be  in  accordance  with  the  established  rules 
of  said  respective  courts,  and  of  such  additions  and  modi- 
fications thereof  as  said  courts  may  adopt.     Sec.  4,  ibid. 

343.  That  the  plaintiff  in  any  suit  brought  under  the 
provisions  of  the  second  section  of  this  act  shall  file  a 
petition,  duly  verified  with  the  clerk  of  the  respective  court 
having  jurisdiction  of  the  case,  and  in  the  district  where 
the  plaintiff  resides.     Such  petition  shall  set  forth  the  full 
name  and  residence  of  the  plaintiff,  the  nature  of  his  claim, 
and  a  succinct  statement  of  the  facts  upon  which  the  claim 
is  based,  the  money  or  any  other  thing  claimed,  or  the 
damages  sought  to  be  recovered  and  praying  the  court  for 
a  judgment  or  decree  upon  the  facts  and  law.    Sec.  5,  ibid. 

344.  That  the  plaintiff  shall  cause  a  copy  of  his  petition 
filed  under  the  preceding  section  to  be  served  upon  the 
district  attorney  of  the  United  States  in  the  district  wherein 
suit  is  brought,  and  shall  mail  a  copy  of  the  same,  by  reg- 
istered letter,  to  the  Attorney- General  of  the  United  States, 
and  shall  thereupon  cause  to  be  filed  with  the  clerk  of  the 
court  wherein  suit  is  instituted  an  affidavit  of  such  service 
and  the  mailing  of  such  letter.     It  shall  be  the  duty  of  the 
district  attorney  upon  whom  service  of  petition  is  made  as 
aforesaid  to  appear  and  defend  the  interests  of  the  Gov- 
ernment in  the  suit,  and  within  sixty  days  after  the  service 
of  petition  upon  him,  unless  the  time  should  be  extended 
by  order  of  the  court  made  in  the  case  to  file  a  plea,  answer, 
or  demurrer  on  the  part  of  the  Government,  and  to  file  a 
notice  of  any  counter-claim,  set-off,  claim  for  damages,  or 
other  demand  or  defense  whatsoever  of  the  Government 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  123 


in  the  premises:  Provided.  That  should  the  district  attor- 

Proceedings  on 

ney  neglect  or  refuse  to  file  the  plea,  answer,  demurrer,  or  failure  of  GOV- 

J  eminent    to    an- 

defense,  as  required,  the  plaintiff  may  proceed  with  theawer. 
case  under  such  rules  as  the  court  may  adopt  in  the  prem- 
ises; but  the  plaintiff  shall  not  have  judgment  or  decree 
for  his  claim,  or  any  part  thereof,  unless  he  shall  establish 
the  same  by  proof  satisfactory  to  the  court.     Sec.  6,  ibid. 

345.  That  it  shall  be  the  duty  of  the  court  to  cause  a    Opinions. 
written  opinion  to  be  filed  in  the  cause,  setting  forth  the 
specific  findings  by  the  court  of  the  facts  therein  and  the 
conclusions  of  the  court  upon  all  questions  of  law  involved 

in  the  case,  and  to  render  judgment  thereon.  If  the  suit 
be  in  equity  or  admiralty,  the  court  shall  proceed  with  the 
same  according  to  the  rules  of  such  courts.  Sec.  7,  ibid. 

346.  That  in  the  trial  of  any  suit  brought  under  any  ^^^f^^' 
the  provisions  of  this  act,  no  person  shall  be  excluded  as  a    sec.  s,  ibid. 
witness  because  he  is  a  party  to  or  interested  in  said  suit; 

and  any  plaintiff  or  party  in  interest  may  be  examined  as 
a  witness  on  the  part  of  the  Government. 

Section  ten  hundred  and  seventy-  nine  of  the  Kevised 
Statutes  is  hereby  repealed.  The  provisions  of  section  ten 
hundred  and  eighty  of  the  Revised  Statutes  shall  apply  to 
cases  under  this  act.  Sec.  #,  ibid. 

347.  That  the  plaintiff  or  the  United  States,  in  any  suit^Appeais   and 
brought  under  the  provisions  of  this  act  shall  have  the    Sec.  9?  ibid.  ' 
same  rights  of  appeal  or  writ  of  error  as  are  now  reserved 

in  the  statutes  of  the  United  States  in  that  behalf  made, 

and  upon  the  conditions  and  limitations  therein  contained. 

The  modes  of  procedure  in  claiming  and  perfecting  an    Procedure. 

appeal  or  writ  of  error  shall  conform  in  all  respects,  arid  as 

near  as  may  be,  to  the  statutes  and  rules  of  court  govern- 

ing appeals  and  writs  of  error  in  like  causes.     Sec.  f  ,  ibid. 

348.  That  when  the  findings  of  fact  and  the  law  applica-    Adverse  judg- 

ments  to  United 

ble  thereto  have  been  filed  in  any  case  as  provided  in  section  states  to  be  certi- 

fied to  Attorney- 

SIX  of  this  act,  and  the  judgment  or  decree  is  adverse  to  General. 
the  Government,  it  shall  be  the  duty  of  the  district  attor- 
ney to  transmit  to  the  Attorney-General  of  the  United 
States  certified  copies  of  all  the  papers  filed  in  the  3ause, 
with  a  transcript  of  the  testimony  taken,  the  written  find- 
ings of  the  court,  and  his  written  opinion  as  to  the  same; 
whereupon  the  Attorney  -General  shall  determine  and  direct 
whether  an  appeal  or  writ  of  error  shall  be  taken  o*-  not;  Appeal. 
and  when  so  directed  the  district  attorney  shall  cause  an 
appeal  or  writ  of  error  to  be  perfected  in  accordance  with 
the  terms  of  the  statutes  and  rules  of  practice  governing 
the  same  :  Provided,  That  no  appeal  or  writ  of  error  shall  Proviso. 


124  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Limitation.  \)Q  allowed  after  six  months  from  the  judgment  or  decree 
in  such  suit.  From  the  date  of  such  final  judgment  or 

interest.  decree  interest  shall  be  computed  thereon,  at  the  rate  of 
four  per  centum  per  annum,  until  the  time  when  an  appro- 
priation is  made  for  the  payment  of  the  judgment  or  decree. 
Sec.  10,  ibid. 

Report  to  Con-     349.  That  the  Attorney-General  shall  report  to  Congress, 

sec.  11,  ibid.     au(j  at  the  beginning  of  each  session  of  Congress,  the  suits 

under  this  act  in  which  a  final  judgment  or  decree  has  been 

rendered  giving  the  date  of  each,  and  a  statement  of  the 

costs  taxed  in  each  case.     Sec.  11,  ibid. 

b?DemartSnentsl     ^^'  ^na^  wnen  a"7  claim  or  matter  may  be  pending  in 

'sec.  i2,iMd.  any  of  the  Executive  Departments  which  involves  contro- 
verted questions  of  fact  or  law,  the  head  of  such  Depart- 
ment, with  the  consent  of  the  claimant,  may  transmit  the 
same,  with  the  vouchers,  papers,  proofs,  and  documents 
pertaining  thereto,  to  said  Court  of  Claims,  and  the  same 
shall  be  there  proceeded  in  under  such  rules  as  the  court 
may  adopt.  When  the  facts  and  conclusions  of  law  shall 
have  been  found,  the  court  shall  report  its  findings  to  the 
Department  by  which  it  was  transmitted.1  Sec.  12,  ibid. 

Claims  referred     351.  That  in  everv  case  which  shall  come  before  the  Court 

under     Bowman  .    . 

Apt.  of  Claims,  or  is  now  pending  therein,  under  the  provisions  ot 

an  act  entitled  "An  act  to  afford  assistance  and  relief  to 
Congress  and  the  Executive  Departments  in  the  investiga- 
tion of  claims  and  demands  against  the  Government,"  ap- 
proved March  third,  eighteen  hundred  and  eighty- three,  if 
it  shall  appear  to  the  satisfaction  of  the  court,  upon  the 
judgment,  facts  established,  that  it  has  jurisdiction  to  render  judg- 
ment or  decree  thereon  under  existing  laws  or  under  the 
provisions  of  this  act,  it  shall  proceed  to  do  so,  giving  to 
either  party  such  further  opportunity  for  hearing  as  in  its 
judgment  justice  shall  require,  and  report  its  proceedings 
therein  to  either  House  of  Congress  or  to  the  Department 
by  which  the  same  was  referred  to  said  court.  Sec.  13,  ibid. 
Reference  of  352,  That  whenever  any  bill,  except  for  a  pension,  shall 

in  congress,  "be  pending  in  either  House  of  Congress  providing  for  the 
payment  of  a  claim  against  the  United  States,  ]egal  or 
equitable,  or  for  a  grant,  gift,  or  bounty  to  any  person,  the 
House  in  which  such  bill  is  pending  may  refer  the  same  to 
the  Court  of  Claims,  who  shall  proceed  with  the  same  in 
accordance  with  the  provisions  of  the  act  approved  March 
third,  eighteen  hundred  and  eighty-three,  entitled  an  "Act  to 
afford  assistance  and  relief  to  Congress  and  the  Executive 
Departments  in  the  investigation  of  claims  and  demands 


1  See  paragraph  333  supra  (section  3,  act  of  March  3, 1883). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  125 

against  the  Government,"  and  report  to  such  House  the 
facts  in  the  case  and  the  amount,  where  the  same  can  be 
liquidated,  including  any  facts  bearing  upon  the  question 
whether  there  has  been  delay  or  laches  in  presenting  such 
claim  or  applying  for  such  grant,  gift,  or  bounty,  and  any 
facts  bearing  upon  the  question  whether  the  bar  of  any 
statute  of  limitation  should  be  removed  or  which  shall  be 
claimed  to  excuse  the  claimant  for  not  having  resorted  to 
any  established  legal  remedy.  'j$ec.  14,  ibid. 

353.  If  the  Government  of  the  United  States  shall  put  in 
issue  the  right  of  the  plaintiff  to  recover  the  court  may, 
in  its  discretion,  allow  costs  to  the  prevailing  party  from,  the 
time  of  joining  such  issue.  Such  costs,  however,  shall  in- 
clude only  what  is  actually  incurred  for  witnesses,  and  for 
summoning  the  same,  and  fees  paid  to  the  clerk  of  the  court.1 
Sec.  15,  ibid. 

'Vol.  24.  Stat.  L.,  pp.  505-508.  paragraphs  339  to  353,  supra,  constitute  the  Tucker 
Act.  The  act  of  March  3, 18!)1  (20  Stat.  L.,  851),  confers  jurisdiction  upon  this  court 
to  adjust  certain  claims  arising  from  Indian  depredations. 


CHAPTER  VIII. 


THE  DEPARTMENT  OF  THE  XAVY— THE  MARINE 

COUPS. 


Par. 

354.  Establishment   of   the  Navy 

Department. 

355.  Composition  of  Marine  Corps. 

356.  Credit  for  volnteer  service. 

357.  Kankof  commandant. 

358.  Relative  rank  with  the  Army. 

359.  Brevets. 

360.  Enlistments. 

361.  Oath. 

362.  Exemption  from  arrest. 

363.  Companies  and  detachments. 

364.  Pay  of  Marine  Corps. 


Par. 

365.  Duty  on  shore. 

366.  Regulations. 

367.  Subject  to  laws  governing  the 

Navy,  except  when  serving 
with  the  Army. 

368.  Retirement  of  officers. 

369.  Retiring  board,  composition. 

370.  Transfers    from    military  to 

naval  service. 

371.  Officers  of  the  Navy  may  be 

detailed  for  service  of  the 
War  Department. 


Establishment  354.  There  shall  be  at  the  seat  of  Government  an  Execu- 
menteofeithotive  Department  to  be  known  as  the  Department  of  the 

Apr. 80,1798, v.  Navv.  and  a  Secretary  of  the  Navy,  who  shall  be  the  head 
1'p'553'  thereof. 

Sec.  415,  It.  S. 

THE  MARINE   CORPS. 


C  o  m  p  o  sition 
of  Marine  Corps. 

July  25, 1861,  c. 
19,  s.  l,v.  12,  p. 
275;  Mar.  2, 1867, 
c.  174,  s.  7,v.  14.  p. 
517 ;  June  «>,  1874, 
v.!85,p.58;  Juno 
30,  1876,  v.  19,  p. 
71. 

Sec.  1596,  B.  S. 


Credit  for  vol- 
unteer service. 

Mar.  2,  1867,  c. 
174,  s.  3,  v.  14,  p. 
516. 

Sec.  1600,  R.S. 

Rank  of  com- 
mandant. 

Mar.  2,  1867,  c. 
174,  s.  7,  v.  14,  p. 
517,  June6,1874, 


126 


355.  The  Marine  Corps  of  the  United  States  shall  con- 
sist of  one  commandant,  with  the  rank  of  colonel,  one  col- 
onel, two  lieutenant-colonels,  four  majors,  one  adjutant  and 
inspector,  one  paymaster,  one  quartermaster,  two  assistant 
quartermasters,  twenty  captains,  thirty  first  lieutenants, 
thirty  second  lieutenants,  one  sergeant-major,  one  quarter- 
master-sergeant, one  drum-major,  one  principal  musician, 
two  hundred  sergeants,  two  hundred  and  twenty  corporals, 
thirty  musicians  for  a  band,  sixty  drummers,  sixty  fifers, 
and  twenty-five  hundred  privates.1 

356.  All  marine  officers  shall  be  credited  with  the  length 
of  time  they  may  have  been  employed  as  officers  or  enlisted 
men  in  the  volunteer  service  of  the  United  States. 

357.  The  commandant  of  the  Marine  Corps  shall  have 
the  rank  of  a  colonel  of  the  Army. 

v.  18,  p.  58.    Sec.  1601, R.  S. 

1  The  commissioned  strength  of  the  Marine  Corps  was  fixed  at  seventy-five  by  the 
act  of  June  30, 1876  (19  Stat.  L.,  71). 


THE   MILITARY    LAWS    OF   THE    UNITED    STATES.  127 

358.  The  officers  of  the  Marine  Corps  shall  be.  in  relation    Relative  rank 

1  with  the  Army. 

to  rank,  on  the  same  footing  as  officers  of  similar  grades  in    June3o,i834,c. 

132,  s.  4,  v.  4,  p- 

the  Army.  713.    sec.  leos,  B.  s. 

359.  Commissions  by  brevet  ma}7  be  conferred  upon  com-    Brevets. 
missioned  officers  of  the  Marine  Corps  in  the  same  cases,  sg^f  Jv\^&*! 
upon  the  same  conditions,  and  in  the  same  manner  as  are^g^^p1.^ 
or  may  be  provided  by  law  for  officers  of  the  Army.  mne839  v83*1  £' 

713  ;  July  6,  1812,  c.  137,  s.  4,  v.  2,  p.  785;  Mar.  1,  1869,  c.  52,  s.  2,  v.  15  'p  281'.  Mar  3 
1869,  c.  124,  s.  7,  v.  15,  p.  318  ;  July  15,  1870,  c.  294,  s.  16,  v.  16,  p.  319.      Sec.  1604,  B.S.' 

360.  Enlistments  into  the  Marine  Corps  shall  be  for  a    Enlistments. 

July    11,    1870, 

period  not  less  than  five  years.  Res.  IOG,  v.  10,  p.  387.  sec.  iocs,  E.  s. 

361.  The  officers  and  enlisted  men  of  the  Marine  Corps    9a,tb> 

July  11,  1798,  c. 

shall  take  the  same  oaths,  respectively,  which  are  provided  72,  s.  4,  v.  i,  P.  595. 
by  law  for  the  officers  and  enlisted  men  of  the  Army.  sec.  1609,  E.  s. 

362.  Marines  shall  be  exempt,  while  enlisted  in  said  serv- 

ice,  from  all  personal  arrest  for  debt  or  contract.  Jul  u 

72,  s.  5,  v.  1,  pp.  595,596;  June  30,  1834,  c.  132,  s.  3,  v.  4,  p.  713.     Secfieio, 

363.  The  Marine  Corps  may  be  formed  into  as  many  com- 
panics  or  detachments  as  the  President  may  direct,  with  a 

proper  distribution  of  the  commissioned  and  non-commis-72's'1)V'1'p'594' 

...  Sec.  1611,  E.S. 

sioned  officers  and  musicians  to  each  company  or  detach- 
ment. 

364.  The  officers  of  the  Marine  Corps  shall  be  entitled  to  C<£*J  of  Marine 
receive  the  same  pay  and  allowances,  and  the  enlisted  men  ^""J^Y83?!? 
shall  be  entitled  to  receive  the  same  pay  and  bounty  for  £*g.  5,  is&i,  c.' 
re-enlisting,  as  are  or  may  be  provided  by  or  in  pursuance  see. 

of  law  for  the  officers  and  enlisted  men  of  like  grades  in  sec.  1012,  B.  s. 
the  infantry  of  the  Army. 

365.  The  Marine  Corps  shall  be  liable  to  do  duty  in  the    j^/™^™' 
forts  and  garrisons  of  the  United  States,  on  the  seacoast,  72>  8-  6.  v-  i.  P-  596- 
or  any  other  duty  on  shore,  as  the  President,  at  his  discre-  Sec*  1619'  Bg  s- 
tion,  may  direct. 

366.  The  President  is  authorized  to  prescribe  such  mili-    ?uSe  Ifo^S,  c. 
tary  regulations  for  the  discipline  of  the  Marine  Corps  asjg1  s-  8>  v-"4>  P- 
he  may  deem  expedient.  Sec.  leso,  B.  s. 

367.  The  Marine  Corps  shall,  at  all  times,  be  subject  to    subject  to  laws 

J  7  governing     the 

the  laws  and  regulations  established  for  the  government  ot  Kav.v-    except 

when    serving 

the  Navy,  except  when  detached  for  service  with  the  Army  with  the  Army. 
by  order  of  the  President;  and  when  so  detached  they  shall  132,  s,  2,  V.  4,'p! 
be  subject  to  the  rules  and  articles  of  war  prescribed  for  the  1796,0.  7t,«.  4,v! 
government  of  the  Army.  '^ec°  16al?  Bt  s> 

368.  The  commissioned  officers  of  the  Marine  Corps  shall    Retirement,  of 

omcers. 

be  retired  in  like  cases,  in  the  same  manner,  and  with  the  Aug<3|  1861i  Ci 
same  relative  conditions,  in  all  respects,  as  are  provided  for  fl1  "ifo'"'  July 
officers  of  h  t*'0 


officers  of  the  Army,  except  as  is  otherwise  provided  in  the 

Jan-  21,1370,  c.  9,  s.  i.  v.  ie,  P.  62  ;  July  15,  ISTO, 

p.  317;   June  10,  1872,  c.  419,  s.  1,  v.  17,  p.  378.     Sec.  1622,  B.S. 


next  section.  Jan-  21,1370,  c.  9,  s.  i.  v.  ie,  P.  62  ;  July  15,  ISTO,  c.  '294,  s.'  4,V. 

.  419, 


128  THE    MILITARY   LAWS   OF    THE    UNITED    STATES. 

369.  in  case  of  an  officer  of  the  Marine  Corps,  the  retir- 


*TS^f  3,^1801,  c.  ing  board  shall  be  selected  by  the  Secretary  of  the  Navy, 
289.  under  the  direction  of  the  President.     Two-fifths  of  the 

sec.  less,  R.S.  board  shall  be  selected  from  the  Medical  Corps  of  the  Navy 
and  the  remainder  shall  be  selected  from  officers  of  the 
Marine  Corps,  senior  in  rank,  so  far  as  may  be,  to  the  officer 
whose  disability  is  to  be  inquired  of. 

TRANSFERS. 

Transfers  from     37Q.  Any  person  enlisted  in  the  military  service  of  the 

military  to  naval 

service.  United  States  may,  on  application  to  the  Navy  Department, 

2oi,usyi,V.  is,  p!  approved  by  the  President,  be  transferred  to  the  Navy  or 

Marine  Corps,  to  serve  therein  the  residue  of  his  term  of 

sec.  1421,  B.S.  eniis^men^  subject  to  the  laws  and  regulations  for  the  gov- 

ernment of  the  Navy.     But  such  transfer  shall  not  release 

him  from  any  indebtedness  to  the  Government,  nor,  without 

the  consent  of  the  President,  from  any  penalty  incurred  for 

a  breach  of  the  military  law. 

DETAILS   OF   NAVAL   OFFICERS. 

NavyCraray°bo  de6  371.  The  President  may  detail,  temporarily,  three  compe- 
o?  tehef°w1TrrVL)Cee  tent  naval  officers  for  the  service  of  the  War  Department 
paFebei2*'i862,c.in  the  inspection  of  transport  vessels,  and  for  such  other 
fB.s.  services  as  may  be  designated  by  the  Secretary  of  War. 


CHAPTER   IX. 


THE  DEPARTMENT  OF  THE  INTERIOR. 


Par. 


372.  Establishment  of  Department 
of  the  Interior. 


Par. 


373.  Duties  of  Secretary. 

374.  Powers  of  Secretary. 


372.  There    shall    be   at   the    seat  of   Government  an    Establishment 

of  Department  of 

Executive  Department  to  be  known  as  the  Department  of  the  interior. 
the  Interior,  and  a  Secretary  of  the  Interior,  who  shall  be  IDS,  sV  i,  v.  9,'  p! 
the  head  thereof.  39sec.  437?  B>  s> 

373.  The  Secretary  of  the  Interior  is  charged  with  the    Duties  of  sec- 
supervision  of  public  business  relating  to  the  following  reMar!  3,  1349,  c. 

,   .  108,  ss.  3,  5,  6,  7,  8, 

subjects:  9,  v.  9,  p.  395-, 


First.  The  census;  when  directed  by  law. 

Second.  The  public  lands,  including  mines. 

Third.  The  Indians.  . 

Fourth.  Pensions  and  bounty  lands.  92,ioe. 

Fifth.  Patents  for  inventions.  Sec*  441'  E-  s* 

Sixth.  The  custody  and  distribution  of  publications. 

Seventh.  Education. 

Eighth.  Government  Hospital  for  the  Insane. 

Ninth.  Columbia  Asylum  for  the  Deaf  and  Dumb. 

374.  The  Secretary  of  the  Interior  shall  hereafter  exercise    Powers  of  sec- 
all  the  powers  and  perform  all  the  duties  in  relation  to  the    Mar.  i,  1873,  c. 
Territories  of  the  United  States  that  were,  prior  to  March 
first,  eighteen  hundred  and  seventy-  three,  by  law  or  by 
custom  exercised  and  performed  by  the  Secretary  of  State. 

THE   GENERAL  LAND-OFFICE. 


Par. 

375.  Commissioner  of  the  General 

Land-Office. 

376.  Secretary  to  the  President  to 

sign  land  patents. 


Par. 

378.  Returns   and  accounts   rela- 

tive to  lands. 

379.  Warrants  for  military  lands. 

380.  Issue  of  patents  for  lands. 


377.  Duties  of  Commissioner. 

129 
1919 9 


130  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 


^nere  snall  be  in  the  Department  of  the  Interior  a 
Land-office.  Commissioner  of  the  General  Land-Office,  who  shall  be 
68,  J,rii,  V.  2,'p!  appointed  by  the  President,  by  and  with  the  advice  and 
c173;52/slyi!'  v835!  consent  of  the  Senate,  and  shall  be  entitled  to  a  salary  of 
ml  °1;  22G*s.  3,  ^our  thousand  dollars  a  year. 

v.   17,'  p.   508.  '  Sec.  446,  B.  S. 

th?epresfdent  to     376>  Tne  President  is  authorized  to  appoint,  from  time  to 

sign  land  pat-  time,  by  and  with  the  advice  and  consent  of  the  Senate,  a 

njuiy  4,  1836,  c.  secretary,  at  a  salary  of  one  thousand  five  hundred  dollars 

in!  8   '  v      P  a  year,  whose  duty  it  shall  be,  under  the  direction  of  the 

sec.  450,  B.  s.  President,  to  sign  in  his  name,  and  for  him,  all  patents  for 

land  sold  or  granted  under  the  authority  of  the  United 

States. 

m£5oner°f  C°m"     377t  Tn6  Commissioner  of  the  General  Land-Office  shall 

Apr.  25,  im,  perform,  under  the  direction  of  the  Secretary  of  the  In- 

7ie;  July  Z  *i836,'  terior  ,  all  executive  duties  appertaining  to  the  surveying 

p.3io7;8'i8  stat!  and  sale  of  the  public  lands  of  the  United  States,  or  in 

t.,p.3i3.          anywise  respecting  such  public  lands,  and,  also,  such  as 

sec.  463,  B.  s.  re]ate  to  private  claims  of  land,  and  the  issuing  of  patents 

for  all  grants  of  land  under  the  authority  of  the  Govern- 

ment. l 

Returns  and  ac-     373.  All  returns  relative  to  the  public  lands  shall  be  made 

counts  relative  to 

lands.  to  the  Commissioner  of  the  General  Land-Office,  and  he 

es^'v^p!?!?'.  shall  have  power  to  audit  and  settle  all  public  accounts 

sec.  456,  B.  s.  relative  to  the  public  lands  ;  and  upon  the  settlement  of 

any  such  account,  he  shall  certify  the  balance,  and  transmit 

the  account  with  the  vouchers  and  certificate  to  the  First 

Comptroller  of  the  Treasury,  for  his  examination  and  deci- 

sion thereon. 

warrants  for     379.  In  all  cases  in  which  land  has  heretofore  or  shall 

mAprr25,ai8i2,  c.  hereafter  be  given  by  the  United  States  for  military  serv- 

681  8'7'v'2'p'717'  ices,  warrants  shall  be  granted  to  the  parties  entitled  to 

sec.  457,  B.  s.  suc]1  ian(j  jjy  the  Secretary  of  the  Interior;  and  such  war- 

rants shall  be  recorded  in  the  General  Land-Office,  in  books 

to  be  kept  for  the  purpose,  and  shall  be  located  as  is  or  may 

be  provided  by  law  ;  and  patents  shall  afterwards  be  issued 

accordingly. 

ento*forian£at*     *^'  "^  patents  issuing  from  the  General  Land-Office 

Apr.  25,  1812,  c.  shall  be  issued  in  the  name  of  the  United  States,  and  be 

Mar.  !',  i8«!c?26,;  signed  by  the  President  and  countersigned  by  the  Eecorder 

s.  2,  v.  5,  P.  4i7.     of  tlle  Q.enerai  Land-Office;  and  shall  be  recorded  in  the 

sec.  458,  B.  s.  office,  in  books  to  be  kept  for  the  purpose.2 

1  The  Court  of  Private  Land  Claims,  established  by  the  act  of  March  3,  1891 
(26  Stat.  L.,  854-862),  has  been  given  jurisdiction  to  hear  and  determine  controversies 
as  to  titles  to  lands  situated  in  the  territory  acquired  from  Mexico,  by  virtue  of 
Spanish  and  Mexican  grants;  and  to  issue  decrees  "which  shall  liually  settle  and 
determine  the  validity  of  such  titles  and  the  boundaries  of  claims  presented  for 
adjudication.    The  powers  of  the  court  are  to  cease  and  determine  on  December  31, 
1897.    Act  March  2,  1895  (18  Stat.  L.,  805).    See  also  Barnard's  Heirs  v.  Ashley'sHeirs 
et  al.,  18  How.,  43  ;  BeUr.Hearne  et  al.,  19  How.,  252;  Maguire  v.  Tyler,  1  Black,  195. 

2  Section  3  of  the  act  of  March  2,  1895.  authorizes  the  patents  for  public  lands  to 
be  engrossed  and  recorded  by  means  of  typewriters  or  other  machines,  under  regu- 
lations to  be  prescribed  by  the  Secretary  of  the  Interior,  with  the  approval  of  the 
President.    (28  Stat.  L.,  807.) 


THE   MILITARY    LAWS   OP   THE    UNITED   STATES. 


131 


THE   COMMISSIONER   OF  INDIAN  AFFAIRS. 


Par. 

381.  Commissioner  of  Indian 

Affairs. 

382.  Duties  of  Commissioner. 

383.  Accounts  for  claims  and  dis- 

bursements. 

384.  Regulations  relating  to  In- 

dian affairs. 


Par. 

385.  Presentation  and  payment  of 

claims  for  Indian  depreda- 
tions. 

386.  Sale  of  arms,  etc.,  to  Indians 

prohibited. 

387.  Commissioner  to  report  annu- 

ally to  Congress. 

388.  Reports  of  Indian  supplies. 


381.  There  shall  be  in  the  Department  of  the  Interior  a 
Commissioner  of  Indian  Affairs,  who  shall  be  appointed  by  17July  9-  1832'  c- 
the  President,  by  and  with  the  advice  and  consent  of  the  564!  s< 
Senate,  and  who  shall  be  entitled  to  a  salary  of  three  thou-    sec.  462,  R.  s. 
sand  dollars  a  year.1 

382.  The  Commissioner  of  Indian  Affairs  shall,  under  the    P*tie8  of  com- 

missioner. 

direction  of  the  Secretary  of  the  Interior,  and  agreeably  to  17July  9>  1832>  c- 
such  regulations  as  the  President  may  prescribe,  have  the  564;  ' 


management  of  all  Indian  affairs,  and  of  all  matters  arising  223°  'f 


out  of  Indian  relations. 


Sec.  463,  B.  s. 


564' 


p. 


*ec"  464'  **  s* 


383.  All  accounts  and  vouchers  for  claims  and  disburse-    Accounts  for 
merits  connected  with  Indian  affairs  shall  be  transmitted 

to  the  Commissioner  for  administrative  examination,  and 
by  him  passed  to  the  proper  accounting  officer  of  the  De- 
partrnent  of  the  Treasury  for  settlement. 

384.  The  President  may  prescribe  such  regulations  as  he 

may  think  fit  for  carrying  into  effect  the  various  provisions          30  1834 
of  any  act  relating  to  Indian  affairs,  and  for  the  settle-  162,  s.  17,  V.  4,'P! 
meiit  of  the  accounts  of  Indian  affairs.  sec.  46o,  R.  s. 

385.  The  Secretary  of  the  Interior  shall   prepare  and    Presentation 

^  *  and  payment  of 

cause  to  be  published  such  regulations  as  he  may  deem  claims  for  Indian 

v  .    .        .       .      depredations. 

proper,  prescribing  the  manner  of  presenting  claims  aris-    May  29,  1372,  c. 

ing  under  laws  or  treaty  stipulations,  for  compensation  for  190!  8> 

depredations  committed  by  the  Indians,  and  the  degree    sec.  466,  R.  s. 

and  character  of  the  "evidence  necessary  to  support  such 

claims;  he  shall  carefully  investigate  all  such  claims  as 

may  be  presented,  subject  to  the  regulations  prepared  by 

him  ;  and  no  payment  on  account  of  any  such  claims  shall 

be  made  without  a  specific  appropriation  therefor  by  Con- 

gress. 

386.  The  Secretary  of  the  Interior  shall  adopt  such  rules    Sale  of  arms, 

J  etc.,    to  Indians 

as  may  be  necessary  to  prohibit  the  sale  of  arms  or  ammu-  prohibited. 

...       J     ....  *         .\  .  .  Feb.  14,  1873,  c. 

nition  within  any  district  or  country  occupied  by  uncivil-  iss,  s.  i,  v.  17,  P. 
ized  or  hostile  Indians,  and  shall  enforce  the  same. 

__      Sec.  467,  R.  S. 

!For  other  statutory  provisions  respecting  Indians,  Indian  affairs,  and  the  Indian 
country  see  the  chapter  entitled  INDIANS,  INDIAN  AGENTS,  ETC. 


OF  THB 

UNIVERSITY 


132  THE    MILITARY   LAWS   OF    THE   UNITED    STATES. 


to?e™OTt  annual'     **^*  ^n6  Commissioner  of  Indian  Affairs  shall  annually 

iy  to  congress,    report,  separately,  to  Congress,  a  tabular  statement  show- 
Mar  2,  1867,  c. 

173,  s.  3,  v.  14,  p.  ing  distinctly  the  separate  objects  of  expenditure  under 
his  supervision,  and  how  much  disbursed  for  each  object, 
Sec.  468,  R.  s.  Ascribing  the  articles  and  the  quantity  of  each,  and  giving 
the  name  of  each  person  to  whom  any  part  was  paid,  and 
how  much  was  paid  to  him,  and  for  what  objects,  so  far  as 
they  relate  to  the  disbursement  of  the  funds  appropriated 
for  the  incidental,  contingent,  or  miscellaneous  expenses 
of  the  Indian  service,  during  the  fiscal  year  next  preced- 
ing each  report.     (See  sees.  195,  196,  R.  S.) 
In-     388.  The  Commissioner  of  Indian  Affairs  shall  embody 
a  his  annual  report  the  reports  of  all  agents  or  cominis- 
***•  sioners  issuing  food,  clothing,  or  supplies  of  any  kind  to 

See.  469,  R.  s.  Indians,  stating  the  number  of  Indians  present  and  actually 
receiving  the  same. 

THE  COMMISSIONER  OF  PENSIONS.1 

Par.  I  Par. 

389.  Commissioner  of  Pensions.      I  390.  Duties  of  the  Commissioner. 

Commissioner  389.  There  shall  be  in  the  Department  of  the  Interior  a 
°fMar1Ti833,  c.  Commissioner  of  Pensions,  who  shall  be  appointed  by  the 
6i9,8622 ;  MarP3,'  President,  by  and  with  the  advice  and  consent  of  the  Sen- 
38v54,  p.779TMarl ate?  an(^  shall  be  entitled  to  receive  a  salary  of  four  thou- 
P  18i?7C'MarV'  4  sand  dollar  s  a  year. 

1840,  c  .'4,  ss.  1,  2',  3,  v.  5,  p.  369 ;  Mar.  4, 1840,  e.  4,  s.  4,  v.  5,  p.  370 ;  Jan.  20, 1843,  c.  4,  v.  5, 
p.  597 ;  Jan.  14,  1846,  c.  4, 8. 1,  v.  9,  p.  3 ;  Jan.  19, 1849,  c.  20,  s.  1,  v.  9,  p.  341 ;  Mar.  3, 1873, 
c.  226,  s.  3,  v.  17,  p.  508.  Sec.  470,  R.  S. 

Duties  of  the  390.  The  Commissioner  of  Pensions  shall  perform,  under 
C°M^  2^1833%.  the  direction  of  the  Secretary  of  the  Interior,  such  duties 
6i9  ^.^a!? 3,' in  the  execution  of  the  various  pension  and  bounty-land 
48p5' 779^'Mar' 3'.  laws  as  mav  l>e  prescribed  by  the  President. 

1837,  c.  43,  s.  2,'vl  5,  p.  187;  Mar.  4,  1840,  c.  4,  s.  2,  v.  5,  p.  369;  Mar.  4, 1840,  c.  4,  s.  4,  v.  5.  p. 
370;  Jan.  20,1843,  c.  4,  s.  2,  v.  5,  p.  597;  Jan.  19,1877,  c.  27, v.  19,  p.  224.  Sec.  471,  R.  S. 

THE  RETURNS  OFFICE.2 


Par. 

391.  Returns  Office. 

392.  Clerk  to  file  returns. 


Par. 

393.  Indexes. 

394.  Copies  of  returns. 


Returns  office.     391.  The  Secretary  of  the  Interior  shall  from  time  to 

June  2,  1862,  c. 

93,  s.  4,v.  2,  p.  412.  time  provide  a  proper  apartment,  to  be  called  the  Eeturns 
Sec.  512,  R.  s.  Office,  in  which  he  shall  cause  to  be  filed  the  returns  of  con- 
tracts made  by  the  Secretary  of  War,  the  Secretary  of  the 
Navy,  and  the  Secretary  of  the  Interior,  and  shall  appoint 
a  clerk  of  the  first  class  to  attend  to  the  same.  (See  sees. 
3744-3747,  R.  S.,  paragraphs  1189-1192  post.) 

1  See  chapter  entitled  PENSIONS  for  laws  regulating  the  granting  of  pensions. 

2  See  chapter  entitled  CONTRACTS  AND  PURCHASES  for  other  statutes  relating  to 
the  filing  of  contracts  and  other  papers  in  the  Returns  Office. 


THE    MILITARY    LAWS   OF   THE   UNITED   STATES.  133 

392.  The  clerk  of  the  Keturns Office  shall  file  all  returns,  cierktoniere. 

turns. 

made  to  the  office,  so  that  the  same  may  be  of  easy  access,  93J™°  2;18122i<5< 
keeping  all  returns  made  by  the  same  officer  in  the  same  412. 
place,  and  numbering  them  in  the  order  in  which  they  are    sec.  sis,  R.  s. 
made. 

393.  The  clerk  of  the  Eeturns  Office  shall  provide  and    Jndex0es- 

lune  2,  1862,c- 

keep  an  index-book,  with  the  names  of  the  contracting  par- 9^,  s.  4,  v.  12,  p. 
ties,  and  the  number  of  each  contract  opposite  to  the  names ; 

',„,.,,,.,,.  Sec.  614,  R.  S. 

and  shall  submit  the  index-book  and  returns  to  any  person 
desiring  to  inspect  it. 

394.  The  clerk  of  the  Eeturns  Office  shall  furnish  copies    Copies  of  re. 
of  such  returns  to  any  person  paying  therefor  at  the  rate  uj£ne  2, 1862,  c. 
of  five  cents  for  every  one  hundred  words,  to  which  copies  4i2.8' 4>  v' 
certificates  shall  be  appended  in  every  case  by  the  clerk    Sec-516»B's* 
making  the  same,  attesting  their  correctness,  and  that  each 

copy  so  certified  is  a  full  and  complete  copy  of  the  return. 


CHAPTER  X. 


THE  REVISED  STATUTES '—THE  STATUSES  AT 
LARGE  —  THE  ARMY  REGULATIONS  —  THE 
ARMY  REGISTER. 

THE   REVISED   STATUTES. 


Par. 

395.  Commissioners  to  revise  and 

consolidate  the  general 
statutes  of  the  United 
States. 

396.  Duties  of  the  commissioners. 

397.  Work    to    be    submitted    to 

Congress. 

398.  Work    may    be    printed    in 

parts. 

399.  Revision  to  be  completed  as 

soon  as  practicable, 

400.  Compensation. 

401.  Preparation  of  Revised  Stat- 

utes for  printing.  Head- 
notes.  Marginal  references. 
References  to  judicial  de- 
cisions. Index. 

402.  Printed  copies  to  be  evidence. 

403.  Title  of  revision  of  statutes. 

404.  Certificate  to  Revised  Stat- 

utes. 

405.  Scope  of  Revised  Statutes. 

406.  Repeal  of  acts  embraced  in 

revision. 

407.  Accrued  rights  reserved. 

408.  Prosecutions     and     punish- 

ments. 

409.  Acts  of  limitation. 

410.  Arrangement  and  classifica- 

tion of  sections. 

411.  Acts  passed  since  December 

1,  1873,  not  affected. 


Par. 
412. 

413. 


414. 
415. 
416. 

417. 
418. 

419. 
420. 

421. 

422. 
423. 
424. 
425. 
'  426. 

427. 

428. 


Commissioner  to  prepare  new 
edition  of  Revised  Statutes. 

Duty  of  Commissioner. 
Amendments.  References. 
Revision  of  indexes. 

Additional  matter  to  be  in- 
cluded. 

When  to  be  completed.  To 
be  legal  evidence. 

New  edition  of  Revised  Stat- 
utes to  be  prima  facie  evi- 
dence. 

Supplement  to  Revised  Stat- 
utes. 

Editing  and  preparing  Sup- 
plement. 

To  be  prima  facie  evidence. 

Supplement  of  1891  to  Re- 
vised Statutes.  (Vol.1.) 

Distribution  of  supplement 
of  1891. 

To  be  prima  facie  evidence. 

Supplement  of  1895.  (Vol.11.) 

Statutes  at  Large. 

Printing  and  binding. 

Distribution  of  pamphlet 
copies  of  acts  of  each  ses- 
sion. 

Preparation  of  laws  of  each 
Congress. 

Printed  copies  to  be  legal 
evidence. 


1  The  Revised  Statutes  must  be  accepted  as  the  law  on  the  subjects  which  they 
embrace  as  it  existed  on  the  first  day  of  December,  1873,  and  were  enacted  to  present 
the  entire  body  of  the  lawa  in  a  concise  and  compact  form.  When  the  language 
of  the  Revised  Statutes  is  plain  and  unambiguous,  the  grammatical  structure  simple 
and  accurate,  and  the  meaning  of  the  whole  intelligible  and  obvious,  a  court  is  not 
at  liberty,  by  construction,  to  reproduce  the  law  as  it  stood  before  the  revision, 
U.  S.  v.  Bowen,  100  U.  S.,  508.  See  also  Wright  v.  U,  S.,  15  C.  Cla,  R.,  80, 86. 

134  ' 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES.  135 

395.  That  the  President  of  the  United  States  be,  and  he 
is  hereby,  authorized,  by  and  with  the  advice  and  consent 


of  the  Senate,  to  appoint  three  persons,  learned  in  the  law,  the   united 

m    States. 

as  commissioners,  to  revise,  simplify,  arrange,  and  consoli-    June27,i8«6,v. 
date  all  statutes  of  the  United  States,  general  and  perma- 
nent in  their  nature,  which  shall  be  in  force  at  the  time 
such  commissioners  may  make  the  final  report  of  their 
doings.     Act  of  June  27,  1866  (14  Stat.  L.,  74). 

396.  That,  in  performing  this  duty,  the  commissioners    Duties  of  the 

commissioners. 

shall  bring  together  all  statutes  and  parts  of  statutes  sec.2,iMd. 
which,  from  similarity  of  subject,  ought  to  be  brought 
together,  omitting  redundant  or  obsolete  enactments,  and 
making  such  alterations  as  may  be  necessary  to  reconcile 
the  contradictions,  supply  the  omissions,  and  amend  the 
imperfections  of  the  original  text;  and  they  shall  arrange 
the  same  under  titles,  chapters,  and  sections,  or  other  suit- 
able divisions  and  subdivisions,  with  head-notes  briefly 
expressive  of  the  matter  contained  in  such  divisions  ;  also 
with  side-notes,  so  drawn  as  to  point  to  the  contents  of  the 
text,  and  with  references  to  the  original  text  from  which 
each  section  is  compiled,  and  to  the  decisions  of  the  Federal 
courts,  explaining  or  expounding  the  same,  and  also  to 
such  decisions  of  the  State  courts  as  they  may  deem  expedi- 
ent ;  and  they  shall  provide  by  a  temporary  index,  or  other 
expedient  means,  for  an  easy  reference  to  every  portion  of 
their  report.  Sec.  2,  ibid. 

397.  That  when  the  commissioners  have  completed  the    work  to  be 
revision  and  consolidation  of  the  statutes,  as  aforesaid,  congress?  e< 
they  shall  cause  a  copy  of  the  same,  in  print,  to  be  sub-    Sec*  3l  *6td> 
rnitted  to  Congress,  that  the  statutes  so  revised  and  con- 
solidated may  be  re-enacted,  if  Congress  shall  so  determine; 

and  at  the  same  time  they  shall  also  suggest  to  Congress 
such  contradictions,  omissions,  and  imperfections  as  may 
appear  in  the  original  text,  with  the  mode  in  whch  they 
have  reconciled,  supplied,  and  amended  the  same;  and  they 
may  also  designate  such  statutes  or  parts  of  statutes  as,  in 
their  judgment,  ought  to  be  repealed,  with  their  reasons  for 
such  repeal.  Sec.  5,  ibid. 

398.  That  the  commissioners  shall  be  authorized  to  cause    work  may  be 
their  work  to  be  printed  in  parts,  so  fast  as  it  may  be  ready  p"ec%,  i&i5ar  * 
for  the  press,  and  to  distribute  copies  of  the  same  to  mem- 

bers of  Congress,  and  to  such  other  persons,  in  limited 
numbers,  as  they  may  see  fit,  for  the  purpose  of  obtaining 
their  suggestions;  and  they  shall,  from  time  to  time,  report 
to  Congress  their  progress  and  doings.  Sec.  4,  ibid. 

399.  That  the  statutes  so  revised  and  consolidated  shall    Revision  to  be 
be  reported  to  Congress  as  soon  as  practicable,  and  the  as^?ac 
whole  work  closed  without  unnecessary  delay.     Sec.  5,  ibid.    Sec*  5'  *Md' 


136  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

compensation.      4QO.  That  the  commissioners  shall  each  receive  as  com. 

Sec.  6,  t&td. 

pensation  for  his  services  at  the  rate  of  five  thousand 
dollars  a  year  for  three  years,  with  the  reasonable  expenses 
of  clerical  service  and  other  incidental  matters,  not  to 
exceed  two  thousand  dollars  annually  for  such  expenses.1 
Sec.  6,  ibid. 

FIRST   EDITION   OF   THE   REVISED   STATUTES. 

Preparation  of     401.  That  the  Secretary  of  State  is  hereby  charged  with 

Revised  Statutes  .  . 

for  printing,  etc.  the  duty  of  causing  to  be  prepared  for  printing,  publica- 


'.  tion  and  distribution  the  revised  statutes  of  the  United 
States  enacted  at  this  present  session  of  Congress:  that 
Head  notes.     ne  shall  cause  to  be  completed  the  head  notes  of  the  several 
Marginal  refer-  titles  and  chapters  and  the  marginal  notes  referring  to  the 

ences  to  original 

statutes.  statutes  from  which  each  section  was  compiled  and  repealed 


y  said  revision;  and  references  to  the  decisions  of  the 
courts  of  the  United  States  explaining  or  expounding  the 
same,  and  such  decisions  of  State  courts  as  he  may  deem 

index.  expedient,  with  a  full  and  complete  index  to  the  same. 

promulgation.  4Q2.  And  when  the  same  shall  be  completed,  the  said 
Secretary  shall  duly  certify  the  same  under  the  seal  of  the 
the  United  States,  and  when  printed  and  promulgated  as 
to^evldence!68  nereinafter  provided,  the  printed  volumes  shall  be  legal 
evidence  of  the  laws  and  treaties  therein  contained,  in  all 
the  courts  of  the  United  States,  and  of  the  several  States 
and  Territories.  2  Sec.  2,  act  of  June  20,  1874  (18  Stat.  L.,  113}. 

Title  of  revi-     403.  That  the  revision  of  the  statutes  of  a  general  and 

sion  of  statutes. 

sec.  3,  ibid,  permanent  nature,  with  the  index  thereto,  shall  be  printed 
in  one  volume,  and  shall  be  entitled  and  labeled  "  Revised 
Statutes  of  the  United  States;"  and  the  revision  of  the 
statutes  relating  to  the  District  of  Columbia;  to  post- 
roads,  and  the  public  treaties  in  force  on  the  first  day  of 
December,  one  thousand  eight  hundred  and  seventy-three, 
with  a  suitable  index  to  each,  shall  be  published  in  a 
separate  volume,  and  entitled  and  labeled  "  Revised  Stat- 
utes relating  to  District  of  Columbia  and  Post-Roads. 
Public  Treaties."  Sec.  5,  ibid. 

1  The  act  of  June  27,  1866  (14  Stat.  L.,  74),  was  revised  by  the  act  of  May  4,  1870 
(16  Stat.  L.,  96),  which  authorized  the  President  to  appoint  three  commissioners  to 
prosecute  and  complete  the  work  prescribed  by  that  statute.    The  work  of  revision 
was  to  be  completed  within  three  years  from  the  date  of  passage  of  the  act  (May  4, 
1870).    The  act  of  March  3,  1873  (17  Stat.  L.,  579),  authorized  the  appointment  of  a 
joint  committee  of  Congress  to  accept  the  draft  of  the  revision  of  laws,  so  far  as  the 
same  was  completed  at  the  expiration  of  the  time  designated  for  that  purpose 
(May  4,  1873).    The  same  statute  authorized  the  existing  joint  committee  to  con- 
tract with  some  suitable  person  or  persons  to  prepare  a  revision  of  the  statutes, 
already  reported  by  the  commissioners,  in  the  form  of  a  bill  to  be  presented  at  the 
opening  of  the  Forty-third  Congress.     The  publication  of  the  first  edition  of  the 
Revised  Statutes  was  authorized  by  the  act  of  June  20,  1874  (18  Stat.  L.,  113)  ; 
pp.  401-403,  post. 

2  The  first  edition  of  the  Revised  Statutes  is  a  transcript  of  the  original  in  the 
State  Department.    It  is  prima  facie  evidence  of  the  law,  but  the  original  is  the  only 
conclusive  evidence  of  the  exact  text  of  the  law.     Wright  v.  U.  S.,  15  C.  Cls.  R.,80,87. 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  137 

404.  That  the  certificate  to  the  printed  volume  of  ^BSjJfSj^yJ? 
revised  statutes  of  the  United  States  required  by  section  utes. 

JJ©C.  £ot  1874,  V» 

two  of  "An  act  providing  for  publication  of  the  revised  is,  P.  293. 
statutes  and  laws  of  the  United  States,"  approved  June 
twentieth,  eighteen  hundred  and  seventy-  four,  shall  be 
made  by  the  Secretary  of  State  under  the  seal  of  the 
Department  of  State,  and  so  much  of  said  section  as  pro- 
vides that  such  certificate  shall  be  under  the  seal  of  the 
United  States,  is  hereby  repealed.  Act  of  December  £8, 
1874  (18  Stat.  L.,  293}. 

SCOPE     OF     THE     REVISED     STATUTES    AND    REPEAL 
PROVISIONS. 

405.  The  foregoing  seventy-  three  titles  embrace  the  stat-    Scope  of  Re- 

/>   1  1       T-T     •  ,      -i   c-  T  j_   •       j_i  vised  Statues. 

utes  of  the  United  States  general  and  permanent  in  their 
nature,  in  force  on  the  first  day  of  December  one  thousand 
eight  hundred  and  seventy-three,  as  revised  and  consoli- 
dated by  commissioners  appointed  under  an  act  of  Con- 
gress, and  the  same  shall  be  designated  and  cited,  as  The 
Kevised  Statutes  of  the  United  States.1 

406.  All  acts  of  Congress  passed  prior  to  said  first  day    Repeal  of  acts 


of  December  one  thousand  eight  hundred  and  seventy- 


three,  any  portion  of  which  is  embraced  in  any  section  of   sec.6596,n.s. 

said  revision,  are  hereby  repealed,  and  the  section  appli- 

cable thereto  shall  be  in  force  in  lieu  thereof;  all  parts  of 

such  acts  not  contained  in  such  revision,  having  been 

repealed  or  superseded  by  subsequent  acts,  or  not  being 

general  and  permanent  in  their  nature  :  Provided,  That  the 

incorporation  into  said  revision  of  any  general  and  perma- 

nent provision,  taken  from  an  act  making  appropriations, 

or  from  an  act  containing  other  provisions  of  a  private, 

local,  or  temporary  character,  shall  not  repeal,  or  in  any 

way  aifect  any  appropriation,  or  any  provision  of  a  private, 

local,  or  temporary  character,  contained  in  any  of  said  acts, 

but  the  same  shall  remain  in  force;  and  all  acts  of  Con- 

gress passed  prior  to  said  last-named  day  no  part  of  which 

are  embraced  in  said  revision,  shall  not  be  affected  or 

changed  by  its  enactment. 

407.  The  repeal  of  the  several  acts  embraced  in  said  revi-    Accrued  rights 
sion,  shall  not  affect  any  act  done,  or  any  right  accruing  Te 

•  W  •      r^Q7    U.  SI 

or  accrued,  or  any  suit  or  proceeding  had  or  commenced  in 
any  civil  cause  before  the  said  repeal,  but  all  rights  and 
liabilities  under  said  acts  shall  continue,  and  may  be 
enforced  in  the  same  manner,  as  if  said  repeal  had  not  been 

'The  Revised  Statutes  are  an  act  of  Congress.  The  enactment  was  approved  and 
became  the  law  on  June  22,  1874.  Wright  v.  U.  S.,  15  C.  Cls.  R.,  80.  In  case  of 
doubt,  ambiguity,  or  uncertainty  the  previous  statutes  may  be  referred  to.  Ibid. 
See  also  Bowen  v.  U.  S.,  100  TJ.  S.,  508.  U.  S.  v.  Bowen,  100  U.  S.  ,508  ;  Bate  Refrigerat- 
ing Co.  v.  Sulzberger,  157  U.  S.,  1. 


138  THE   MILITARY   LAWS   OP   THE   UNITED    STATES. 

made;  nor  shall  said  repeal,  in  any  manner  affect  the  right 
to  any  office,  or  change  the  term  or  tenure  thereof. 

408.  All  offenses  committed,  and  all  penalties  or  forfeit- 
ures  incurred  under  any  statute  embraced  in  said  revision 

sec.  5598,  R.s.prjor  j-o  g^  repeal,  maybe  prosecuted  and  punished  in 
the  same  manner  and  with  the  same  effect,  as  if  said 
repeal  had  not  been  made. 

Acts  of  nmita-     £09.  ^11  acts  of  limitation,  whether  applicable  to  civil 

sec  5599  B  s  causes  an(^  proceedings,  or  to  the  prosecution  of  offenses, 
or  for  the  recovery  of  penalties  or  forfeitures,  embraced 
in  said  revision  and  covered  by  said  repeal,  shall  not  be 
affected  thereby,  but  all  suits,  proceedings  or  prosecutions, 
whether  civil  or  criminal,  for  causes  arising,  or  acts  done 
or  committed  prior  to  said  repeal,  may  be  commenced  and 
prosecuted  within  the  same  time  as  if  said  repeal  had  not 
been  made. 

Arrangement     410.  The  arrangement  and  classification  of  the  several 

and  classification  ••""••  -.  i      /.        ,, 

of  sections.        sections  of  the  revision  have  been  made  for  the  purpose  of 

sec.  5600,  R.S.  a  more  convenient  and  orderly  arrangement  of  the  same, 

and  therefore  no  inference  or  presumption  of  a  legislative 

construction  is  to  be  drawn  by  reason  of  the  Title,  under 

which  any  particular  section  is  placed. 

Acts  passed  411.  The  enactment  of  the  said  revision  is  not  to  affect 
not  affected.  '  or  repeal  any  act  of  Congress  passed  since  the  1st  day  of 
84,  v.  is,  'p.  329-  December  one  thousand  eight  hundred  aud  seventy-three, 

Mar.  3,1875,0.130,          ,       ,,  ,       .  .     ,     .  , 

s.  9,  v.  is,  p.  401.  and  all  acts  passed  since  that  date  are  to  have  full  effect 
sec.66oi,B.s.  as  if  passed  after  the  enactment  of  this  revision,  and  so 
far  as  such  acts  vary  from,  or  conflict  with  any  provision 
contained  in  said  revision,  they  are  to  have  effect  as  sub- 
sequent statutes,  and  as  repealing  any  portion  of  the 
revision  inconsistent  therewith. 

SECOND  EDITION  OF  THE  REVISED    STATUTES. 

EDITION  OF  1878. 

412.  That  the  President  of  the  United  States  be,  and  he 
hereby,  authorized  to  appoint,  by  and  with  the  advice 
9jp?268.' 187?I  v>  and  consent  of  the  Senate,  one  person,  learned  in  the  law, 
as  a  commissioner,  for  the  purpose  of  preparing  and  pub- 
lishing a  new  edition  of  the  first  volume  of  the  Eevised 
Statutes  of  the  United  States.1  Act  of  March  2,  1877  (19 
Stat.  £.,  268). 

£sfonerf  c°m"     413<  That  in  performing  this  duty,  said  commissioner  shall 
sec.  2,  ibid.     be  required  to  incorporate  into  the  text  of  the  Eevised 

1  The  second  edition  of  the  Revised  Statutes  is  only  a  new  publication ;  a  compila- 
tion, containing  the  original  law  with  specific  amendments  incorporated  therein 
according  to  the  judgment  of  the  editor.  Wright  »>.  U.  S.,  15  C.  Cls.  R.,  80.  The 
Revised  Statutes  did  not  affect  statutes  passed  between  December  1.  1873,  and  June 
22, 1874.  See  note  1  to  paragraph  405  ante. 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES. 


139 


References. 


Re  vision  of  in- 


Statutes  as  published  in  the  year  anno  Domini  eighteen 

hundred  and  seventy-five,  under  the  act  of  June  twentieth, 

eighteen  hundred  and  seventy-four,  all  the  amendments    Amendments. 

which  have  been  made  in  the  revision  so  published  since 

the  first  day  of  December,  eighteen  hundred  and  seventy 

three,  and  all  that  shall  be  made  up  to  the  close  of  the 

present  session  of  Congress,  with  marginal  references  to 

such  amendatory  acts,  and  to  all  the  decisions  of  the  sev 

eral  courts  of  the  United  States,  (as  far  as  the  same  may 

have  been  published,)  which  may  have  been  made  sub 

sequent  to  those  already  cited  in  the  margin  of  the  present 

revision,  and  may  include  also  citations  to  such  -judicial 

decisions  of  the  various  State  courts  as  he  may  deem 

important;  and  he  shall  also  make  marginal  references  to 

the  various  statutes  passed  by  Congress  since  the  first  day 

of  December,   eighteen   hundred  and   seventy -three,   not 

expressly  therein  declared  to  be  amendments  to  the  Revised 

Statutes,  but  which,  in  the  opinion  of  said  commissioner, 

may  in  any  manner  affect  or  modify  any  of  the  provisions 

of  the  said  Revised  Statutes,  or  any  of  the  amendments 

thereto,  indicating  in  such  marginal  notes  by  a  difference 

in  type  the  references  to  statutes  of  this  kind,  and  he  shall 

revise  the  indexes  and  incorporate  therein  references  to  the 

additions  herein  required.     Sec.  2,  ibid. 

414.  That  there  shall  also  be  included  in  said  edition  the    Addi  tionai 

matter  to  be  m- 

Articles  of  Confederation,  the  Declaration  of  our  National  cinded. 

Sec.  3,  ibid. 

Independence,  the  Ordinance  of  seventeen  hundred  and 
eighty-seven  for  the  government  of  the  Northwestern 
Territory,  the  Constitution  of  the  United  States,  with  foot 
notes  referring  to  decisions  of  the  federal  courts  thereon, 
the  "Act  to  provide  for  the  revision  and  consolidation  of 
the  statute  laws  of  the  United  States,"  approved  June 
twenty-seventh,  eighteen  hundred  and  sixty-six,  and  the 
"Act  providing  for  publication  of  the  Revised  Statutes  and 
the  laws  of  the  United  States,"  approved  June  twentieth, 
eighteen  hundred  and  seventy-four,  as  well  as  the  present 
act.  Sec.  3,  ibid. 

415,  That  said  new  edition  shall  be  completed  in  manu- 
script by  said  commissioner  by  the  first  day  of  January 
anno  Domini  eighteen  hundred  and  seventy- eight,  and  by 
him  presented  to  the  Secretary  of  State  for  his  examina- 
tion and  approval,  who  is  hereby  required  to  examine  and 
compare  the  same  as  amended,  with  all  the  amendatory 

acts,  and,  within  two  months  after  having  been  submitted  20^27 9l  18?8'v< 
to  him,  and  when  the  same  shall  be  completed,  the  said 
Secretary  shall  duly  certify  the  same"  under  the  seal  of  the 
Secretary  of  State,  and  when  printed  and  promulgated  as 


When    t  o 
completed. 


be 


140  THE    MILITARY    LAWS   OF    THE    UNITED    STATES. 

iencebelegalevi  herein  provided  the  printed  volume  shall  be  legal  evidence 
of  the  laws  therein  contained,  in  all  the  courts  of  the  United 
States,  and  of  the  several  States  and  Territories,  but  shall  not 
preclude  reference  to,  nor  control,  in  any  case  of  discrepancy, 
the  effect  of  any  original  act  as  passed  by  Congress  since  the 
firstdayof  December,  eighteen  hundred  and  seventy-three, 
and  said  Secretary  shall  cause  fifteen  thousand  copies  of 
the  same  to  be  printed  and  bound  at  the  Government 
Printing  Office,  under  the  supervision  of  said  commissioner, 
at  the  expense  of  the  United  States,  and  without  unneces- 
Mar.  9  1878.  v  sary  delay,  Sec.  4,  ibid. 
New  edition  of  416  That  an  act  entitled  uAn  act  to  provide  for  the 

Revised  Statutes  .  , .  _        .       , 

to  be  prima  facie  preparation  and  publication  of  a  new  edition  of  the  Revised 
*VMa?C9, 1878,  v.  Statutes  of  the  United  States,"  approved  March  second, 
?o,  p.  27.  eighteen  hundred  and  seventy- seven,  be,  and  the  same  is 

*  Under  the  authority  conferred  by  this  statute  tbe  Hon  .  George  S  Boutwell  was 
appointed  a  commissioner  to  prepare  tbe  new  edition  The  following  extract  from 
the  preface  to  tbe  second  edition  of  tbe  .Revised  Statutes  will  explain  its  scope 

By  an  act  of  Congress  approved  March  2  1877  (v.  19,  c  82,  p  208).  authority  was 
given  for  tbe  appointment  by  the  President  of  a  commissioner,  whose  duty  it  should 
be  to  prepare  and  publish,  subject  to  the  examination  and  approval  of  the  Secretary 
of  State,  a  new  edition  of  the  first  volume  of  the  Revised  Statutes  of  the  Dnited 
States. 

The  jurisdiction  of  the  commissioner  was  defined  and  limited  by  the  statute  He 
•was  directed  to  incorporate  into  the  text  of  the  first  edition  of  the  statutes  all  the 
amendments  made  since  the  first  day  of  December,  eighteen  hundred  and  seventy 
three,  including  those  made  by  the  Forty  fourth  Congress,  with  marginal  references 
to  the  acts  of  amendment  and  to  the  decisions  of  the  several  courts  of  the  Dnited 
States,  with  like  references  to  all  the  statutes  passed  in  the  same  period,  which,  in 
the  opinion  of  the  commissioner,  might  in  any  manner  aflect  or  modify  any  of  the 
provisions  of  the  first  edition  of  the  Revised  Statutes. 

He  was  also  directed  to  include  in  the  new  edition  the  Articles  of  Confederation,  the 
Declaration  of  our  National  Independence,  the  Ordinance  of  Seventeen  hundred  and 
eighty-seven  for  the  Government  of  the  Northwestern  Territory,  and  the  Constitu 
tion  of  the  United  States,  with  footnotes  referring  to  the  decisions  of  the  Federal 
courts  thereon.  These  papers  were  not  printed  with  the  first  edition  of  the  statutes. 

This  edition  is  not  in  any  proper  sense  a  new  revision  of  the  statutes  of  tbe  Dnited 
States.  The  commissioner  was  not  clothed  with  power  to  change  thesubstance  or  to 
alter  the  language  of  the  existing  edition  of  the  Revised  Statutes,  nor  could  he  cor 
rect  any  errors  or  supply  any  omissions  therein  except  as  authorized  by  the  several 
statutes  of  amendment.  Of  specific  amendments  there  are,  however,  several  bun 
dred,  which  tiave  been  incorporated  with  the  text  Tbe  portions  of  tbe  statutes  re 
pealed  are  printed  in  italics  and  included  in  brackets  and  the  new  matter  introduced 
is  printed  in  the  ordinary  roman  letter  and  also  included  in  brackets 

So  much  of  tbe  work  as  arJects  tbe  text  of  the  present  edition  has  been  examined, 
under  the  direction  of  the  Hon  William  M.  Evarts,  Secretary  of  State  by  Bon 
Charles  P  James  one  of  tbe  commissioners  by  whom  the  first  edition  of  tbe  Revised 
Statutes  was  prepared. 

The  acts  of  Congress  passed  since  the  first  edition  of  the  Revised  Statutes  was 
issued,  and  affecting  the  text  thereof,  are  referred  to  in  the  margin  of  the  respec 
tive  sections  so  affected. 

In  this  edition  full  and,  it  is  believed,  complete  notes  of  reference  to  tbe  opinions 
of  tbe  Supreme  Court  of  the  Dnited  States  will  be  lound  under  tbe  several  para 
graphs  of  the  Constitution  to  which  tbe  opinions  respectively  relate  and  reference 
is  also  made  to  the  small  number  of  decisions  which  interpret  or  in  any  manner 
touch  the  Ordinance  for  the  Government  of  the  Northwestern  Territory 

The  appendix  contains  tbe  various  statutes  which  provide  for  or  relate  to  the 
"revision  and  consolidation  of  the  statute  laws  of  the  Dnited  States,'  and  also  a 
cross  index  bv  which  the  various  provisions  of  the  Revised  Statutes  may  be  traced 
to  the  original  enactments  in  the  Statutes  at  Large. 

In  the  preparation  of  the  index  I  have  bad  tbe  best  assistance  which  I  could  com 
mand,  and  no  labor  has  been  avoided  that  could  contribute  in  the  least  to  the  per 
fectnessof  tbe  work.  While  it  is  not  probable  that  the  end  sought  has  been  attained 
I  indulge  the  hope  that  the  character  of  the  index  may.  in  some  reasonable  degree. 
meet  the  expectation  of  Congress,  the  executive  officers  of  the  Government,  the 
judiciary,  and  the  profession  generally 

The  analytical  index  to  the  Constitution  was  prepared  by  W  J  McDonald,  esq. 
late  Chief  Clerk  of  the  Dnited  States  Senate. 

Tbe  historical  notes  to  the  Declaration  of  Independence  the  Articles  of  Confed 
eration,  and  tbe  Constitution  are  taken  from  a  work  entitled  "  The  Organic  Laws  of 
tbe  Duited  States  of  America,  prepared  by  M»j.  Ben:  Perley  Poore,  and  printed 
by  authority  of  Congress.  • 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  141 

hereby,  amended  as  follows,  to  wit:  By  striking  out  from 
the  ninth  and  tenth  lines  of  section  four  [par.  415  supra] 
as  published  in  the  nineteenth  volume  of  the  Statutes  at 
Large,  the  words  "and  conclusive";  and,  in  the  tenth  line, 
the  words  "  and  treaties";  and,  by  inserting  after  the  word 
" Territories"  at  the  end  of  the  eleventh  line,  the  following 
words,  to  wit :  "but  shall  not  preclude  reference  to,  nor  con- 
trol, in  case  of  any  discrepancy,  the  effect  of  any  original 
act  as  passed  by  Congress  since  the  first  day  of  December, 
eighteen  hundred  and  seventy- three."  Act  of  March  97 1878 
(20  Stat.  L.,  27). 


SUPPLEMENTS   TO   THE   REVISED   STATUTES. 

THE  SUPPLEMENT  OF  1881. 

417.  That  the  supplement  to  the  Ee  vised  Statutes,  em-    Supplement  to 
bracing  the  statutes  general  and  permanent  in  their  nature  utes.  ev 
passed  after  the  Eevised  Statutes  with  references  connect-  u,  ''' 


ing  provisions  on  the  same  subject,  explanatory  notes,  cita-  v*  21'  p'  308< 
tions  of  judicial  decisions,  and  a  general  index,  prepared 
by  William  A.  Eichardson,  be  stereotyped  at  the  Govern- 
ment Printing  Office;  and  the  index  and  plates  thereof 
and  all  right  and  title  therein  and  thereto  shall  be  in  and 
fully  belong  to  the  Government  for  its  exclusive  use  and 
benefit.  Joint  resolution  No.  44,  June  7,  1880  (21  Stat.  L., 
308). 

418.  That  six  thousand  three  hundred  and  fifty-seven    Editing  and 
copies  be  printed,  bound,  and  distributed  as  provided  for  the  }Kenting  8up" 
distribution  of  the  Eevised  Statutes  by  the  "Joint  resolu- 
tion providing  for  the  distribution  and  sale  of  the  new  edi-    Ibid- 
tion  of  the  Eevised  Statutes  of  the  United  States",  passed 
May  twenty-second,  eighteen  hundred  and  seventy-eight,    ms,  res.  22, 
and  joint  resolution  passed  December  twenty-first,  eighteen  Sti87^''  res251  1, 
hundred  and  seventy-  eight,  and  such  additional  copies,  on  stat>  LM  20>  487> 
the  order  of  the  Secretary  of  State,  as  may  be  necessary 
from  time  to  time,  to  be  kept  for  sale  in  the  same  manner 
and  on  like  terms  as  the  Eevised  Statutes  are  required  to 
be  kept  for  sale,  and  to  supply  deficiencies  and  offices 
newly  created;  that  for  preparing  and  editing  said  supple- 
ment, including  indexing  and  all  clerical  work  necessary 
to  fully  complete  said  work,  including  the  legislation  of 
the  Forty-sixth  Congress,  there  shall  be  paid  to  said  editor 
the  sum  of  five  thousand  dollars;  and  each  Senator  and 
Member  of  the  present  Congress  who  would  not  receive 


142  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

copies  under  said  joint  resolutions  shall  receive  the  same 

number  of  copies  as  other  Senators  or  Members  receive 

under  the  same.    Ibid. 
TO  be  prima     419.  The  publication  herein  authorized  shall  be  taken  to 

be  prima  facie  evidence  of  the  laws  therein  contained  in  all 
ibid.  the  courts  of  the  United  States  and  of  the  several  States 

and  Territories  therein;  but  shall  not  preclude  reference 

to,  nor  control,  in  case  of  any  discrepancy,  the  effect  of 
Proviso.          any  original  act  as  passed  by  Congress:  Provided,  That 

nothing  herein  contained  shall  be  construed  to  change  or 

alter  any  existing  law.1     Ibid. 

THE  SUPPLEMENT  OF  1891,  VOL.  I. 

supplement  of     420.  That  the  publication  of  the  Supplement  to  the  Ee- 

1891   to  Revised 

statutes.  vised  Statutes,  embracing  the  statutes  general  and  perma- 

26,P?5o. '  v'nent  in  their  nature,  passed  after  the  Kevised  Statutes, 
with  references  connecting  provisions  on  the  same  subject, 
explanatory  notes,  and  citations  of  judicial  decisions,  be 
contents.  continued  and  issued  in  one  volume,  to  include  the  general 
laws  of  the  Forty-seventh,  Forty-eighth,  Forty-ninth,  Fif- 
tieth, and  Fifty-first  Congresses,  with  a  table  of  alterations 
and  a  general  index  to  the  whole,  to  be  prepared  and  edited 
by  the  editor  of  the  existing  Supplement,  authorized  by  the 
joint  resolution  of  June  twenty-eighth,  eighteen  hundred 
and  eighty,  numbered  forty-four  (Supplement  to  Ee vised 
Statutes,  page  five  hundred  and  eighty-two),  to  be  stereo- 
typed at  the  Government  Printing  Office,  using  the  present 
plates,  as  far  as  practicable,  with  such  alterations  as  may 
be  found  necessary,  the  work  and  plates  and  all  right  and 
title  therein  and  thereto  to  be  in  and  fully  belong  to  the 
Government  for  its  exclusive  use  and  benefit.  Act  of  April 
9,  1890  (26  Stat.  L.,  50}. 

Distribution  of  421.  That  a  sufficient  number  of  copies  be  printed  and 
ISM?  '  °  bound  for  distribution,  and  to  be  distributed  to  members 
of  Congress  for  themselves,  and  for  distribution  by  them, 
to  the  departments,  libraries,  public  officers,  and  others, 
the  same  number  to  each  as  heretofore  provided  by  Con- 
gress for  the  distribution  of  the  Eevised  Statutes  of  the 
United  States,  and  the  same  number  to  the  editor  as  to  a 
member  of  Congress  and  such  additional  copies  on  the 
order  of  the  Secretary  of  State  as  may  be  necessary  from 
time  to  time  to  supply  deficiencies  and  offices  newly 
sale.  created,  and  for  keeping  for  sale  in  the  same  manner  and 

1  Under  this  resolution  a  supplement  was  published  in  1881,  entitled  volume  1.  It 
was  then  supposed  that  other  volumes  would  be  authorized,  from  time  to  time,  by 
subsequent  legislation.  This  proved  not  to  be  the  case,  as  the  act  of  April  9,  1890 
(paragraph  420,  post),  provided  for  the  continuation  of  the  publication  to  be  issued  in 
one  volume  and  to  embrace  the  general  laws  passed  subsequent  to  the  issue  of  the 
Eevised  Statutes  and  including  those  of  the  Forty-seventh,  Forty-eighth,  Forty- 
ninth,  Fiftieth,  and  Fifty-first  Congresses.  See  note  2  to  paragraph  423  post. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


143 


like  terms  as  the  Revised  Statutes  are  required  to  be  kept 
for  sale.  For  preparing  and  editing  said  Supplement,  in- 
cluding the  legislation  of  the  Fifty- first  Congress,  and  the 
indexing  and  all  clerical  work  necessary  to  fully  complete 
the  same,  there  shall  be  paid  to  said  editor  the  sum  of  six 
thousand  dollars.  Sec.  5,  ibid. 

422,  That  the  publication   herein   authorized  shall  beyjjjjj! 
taken  to  be  prima  facie  evidence  of  the  laws  therein  con-    Sec-3>iMd- 
taiiied,  but  shall  not  change  nor  alter  any  existing  law,  nor 
preclude  reference  to  nor  control  in  case  of  any  discrep- 
ancy, the  effect  of  any  original  act  passed  by  Congress.1 

Sec.  3,  ibid. 

THE  SUPPLEMENT  OF  1895,  VOL.  IT. 

423.  That  the  publication  of  the  Supplement  to   the 
Revised  Statutes  of  the  United  States  shall  be  further 
continued  under  the  editorial  charge  of  the  editor  of  the 
existing  Supplement  and  his  assistants.2     Act  of  February 
27,  1893  (27  Stat.  L.,  477}. 

THE   STATUTES   AT   LARGE.3 


271<peti7277 1893>  Vl 


424.  That  the  Secretary  of  State  shall  cause  the  statutes  T  statutes 

**  Large. 


at 


at  large  enacted  by  each  Congress,  which  shall  be  edited 

and  printed  pursuant  to  the  provisions  of  section  seven  of   s.  9.  Mar.  3, 

the  act  entitled  "An  act  for  publication  of  the  Revised 

Statutes  and  the  laws  of  the  United  States,"  approved 

June  twentieth,  eighteen  hundred  and  seventy-  four,  to  be. 

'The  volume  published  in  conformity  to  the  authority  herein  conferred  was  pub- 
lished in  1891,  and  is  entitled  "Vol.  I,  Supplement  to  the  Revised  Statutes  of  the 
United  States  Second  Edition.  1874-1891,  '  and  supersedes  the  volume  published 
under  the  authority  conferred  by  the  joint  resolution,  No.  44  of  June  7  1880  (21 
Stat.  L..  308). 

'Under  the  authority  conferred  by  this  statute  a  second  volume  of  the  Supple- 
ment was  published  in  1895.  It  contains  all  general  legislation  of  the  Fifty-second 
and  Fifty-third  Congresses  between  January  22.  1892,  and  March  2,  1895. 

8  Table  showing  the  period  covered  by  each  of  the  twenty  -seven  volumes  of  the  Statutes 

at  Large 


Stat.  L. 

Period. 

Stat.  L. 

Period. 

From  — 

To— 

From— 

To- 

Vol.    1  . 
2. 
3  . 
•4. 
5  . 
6a 
7& 

Mar.    4  1789 
Dec.    2,  1799 
May  29,  1813 
Dec.     1.1823 
Dec.    7  1835 
Mar.    4,1789 

Mar.    3,  1799 
Mar.    3  1813 
Mar.    3  1823 
Mar.    31835 
Mar.    3  1845 
Mar.    3,1845 

Vol.  15  . 
16. 
17. 
18. 
19 
20 
21 
22 
23 
24 
25. 
26 
27 

Mar.    4,1867 
Mar.    4,1869 
Mar.    4  1871 
Dec.     1  1873 
Dec.    6  1875 
Oct.   15,1877 
Mar.  18,1879 
Dec.    5,  1881 
Dec.    3  1883 
Dec.    7.  1885 
Dec.    5  1887 
Dec.     2  1889 
Dec.     7  1891 

Mar.     4,  1869 
Mar.       ,  1871 
Mar        ,  1873 
Mar        ,  1875 
Mar        ,  1877 
Mar.       ,  1879 
Mar        ,  1881 
Mar      3  1883 
Mar      3  1885 
Mar.     3  1887 
Mar.     2,  1889 
Mar      3  1891 
Mar      3,  1893 

8c 

9. 
10. 
11. 
12. 
13. 
14. 

Dec.     1  1845 
Dec.    1,1851 
Dec.    3,  1855 
Dec.    5  1859 
Dec.    7.  1863 
Dec.    4,  1865 

Mar.    3,1851 
Mar.    3  1855 
Mar.    3,1859 
Mar.    4  1863 
Mar.    4  1865 
Mar.    4,  1867 

a  Private  laws  0  Indian  treaties 

c  European  treaties,  with  general  Index  to  vols.  1-8,  inclusive,  Statutes  at  Large. 


144  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

stereotyped  and  offered  for  sale  in  the  same  manner  and  on 
the  same  terms  as  is  provided  in  and  by  section  nine  of 
said  act  herein  mentioned  in  respect  to  the  laws  of  each 
session  of  Congress.  That  the  provisions  of  section  two 
of  the  act  entitled  "An  act  providing  for  the  distribution 
of  the  Revised  Statutes,"  approved  February  eighteenth, 
eighteen  hundred  and  seventy-five,  shall  apply  to  the  stat- 
utes at  large  enacted  by  each  Congress  and  to  the  laws  0$ 
each  session  of  Congress,  to  be  published  pursuant  to  said 
act  of  June  twentieth,  eighteen  hundred  and  seventy- four, 
in  the  same  manner  as  if  specially  mentioned  therein.  Sec.99 
act  of  March  5,  1875  (18  Stat.  L.,  401}. 

bindiHting  *nd  ^^*  That  tne  Congressional  Printer  be,  and  he  is  hereby 
directed,  in  causing  to  be  printed  and  bound  an  edition  of 
the  Jaws  at  the  close  of  the  session  for  the  use  of  the  Senate 
and  the  House  of  Representatives,  to  print  the  same  from 
the  stereotype  plates  of  the  edition  prepared  under  the  di 
rection  of  the  Department  of  State,  with  the  index  thereof; 
and  so  much  of  the  act  entitled  "An  act  to  expedite  and 
regulate  the  printing  of  public  documents,  and  for  other 
purposes,"  approved  June  twenty  fifth,  eighteen  hundred 
and  sixty-four,  as  requires  the  preparation  of  an  alphabet- 
ical index,  under  the  direction  of  the  Joint  Committee  on 
Printing,  be  and  the  same  is  hereby,  repealed.  Ibid. 
Distribution  of  426  That  at  the  close  of  every  session  of  Congress  the 

of "cts  ofc°each  Secretary  of  State  shall  cause  to  be  distributed  pamphlet 


sec.  6,  June  20,  copies  of  the  acts  and  resolves  of  Congress  for  that  session, 
edited  and  printed  in  the  manner  aforesaid,  as  follows:  To 
the  President  and  Vice- President  of  the  United  States,  two 
copies  each ;  to  each  Senator,  Representative,  and  Delegate 
in  Congress,  one  copy;  to  the  librarian  of  the  Senate,  for 
the  use  of  Senators,  one  hundred  and  twenty-six  copies;  to 
the  librarian  of  the  House,  two  hundred  and  fifty  copies, 
for  the  use  of  the  Representatives  and  Delegates;  to  the 
Library  of  Congress,  fourteen  copies;  to  the  Department  of 
State,  including  those  for  the  use  of  legations  and  consu- 
lates, six  hundred  copies;  to  the  Treasury  Department,  two 
hundred  copies;  to  the  War  Department,  including  those 
for  the  use  of  officers  of  the  Army,  two  hundred  copies;  to 
the  Navy  Department,  including  those  for  the  use  of  offi- 
cers of  the  Navy,  one  hundred  copies;  to  the  Department 
of  the  Interior,  including  those  for  the  use  of  the  surveyors- 
general  and  registers  and  receivers  of  public  land  offices, 
two  hundred  and  fifty  copies;  to  the  Post-Office  Depart- 
ment, fifty  copies;  to  the  Department  of  Justice,  including 
those  for  the  use  of  the  chief  and  associate  justices,  the 
judges  and  the  officers  of  the  United  States  and  territorial 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  145 

courts,  four  hundred  and  twenty-five  copies ;  to  the  Depart- 
ment of  Agriculture,  ten  copies;  to  the  Smithsonian  Insti- 
tution, five  copies;  to  the  Government  Printing  Office,  two 
copies;  to  the  governors  and  secretaries  of  Territories,  one 
copy  each ;  to  be  retained  in  the  custody  of  the  Secretary  of 
State,  one  thousand  copies;  and  ten  thousand  copies  shall 
be  distributed  to  the  States  and  Territories  in  proportion 
to  the  number  of  Senators,  Eepresentatives,  and  Delegates 
in  Congress  to  which  they  are  at  the  time  entitled.  Sec.  6, 
act  of  June  20,  1874  (18  Stat.  L.,  113). 

427.  That  after  the  close  of  each  Congress  the  Secretary  Preparation 
of  State  shall  have  edited,  printed  and  bound  a  sufficient  each  congress.0 
number  of  the  volumes  containing  the  Statutes  at  Large 
enacted  by  that  Congress  to  enable  him  to  distribute  copies, 
or  as  many  thereof  as  may  be  needed,  as  follows:  To  the 
President  of  the  United  States,  four  copies,  one  of  which 
shall  be  for  the  library  of  the  Executive  Mansion,  and  one 
copy  shall  be  for  the  use  of  the  Commissioner  of  Public 
Buildings;  to  the  Vice  President  of  the  United  States,  one 
copy;  to  each  Senator,  Eepreseutative,  and  Delegate  in 
Congress,  one  copy;  to  the  librarian  of  the  Senate,  for  the 
use  of  Senators,  one  hundred  and  fourteen  copies ;  to  the 
librarian  of  the  House,  for  the  use  of  Representatives  and 
Delegates,  four  hundred  and  ten  copies;  to  the  Library  of 
Congress,  fourteen  copies,  including  four  copies  for  the  law 
library;  to  the  Department  of  State,  including  those  for 
the  use  of  legations  and  consulates,  three  hundred  and 
eighty  copies;  to  the  Treasury  Department,  including  those 
for  the  use  of  officers  of  customs,  two  hundred  and  sixty 
copies;  to  the  War  Department,  including  a  copy  for  the 
Military  Academy  at  West  Point,  fifty  copies;  to  the  Navy 
Department,  including  a  copy  for  the  library  at  the  Naval 
Academy  at  Annapolis,  a  copy  for  the  library  of  each 
navy-yard  in  the  United  States,  a  copy  for  the  library  of 
the  Brooklyn  Naval  Lyceum,  and  a  copy  for  the  library 
of  the  Naval  Institute  at  Charlestown,  Massachusetts, 
sixty-five  copies;  to  the  Department  of  the  Interior,  in- 
cluding those  for  the  use  of  the  surveyors- general  and 
registers  and  receivers  of  public  land-offices,  two  hundred 
and  fifty  copies;  to  the  Post-Office  Department,  fifty  copies; 
to  the  Department  of  Justice,  including  those  for  the  use 
of  the  chief  and  associate  justices,  the  judges  and  the 
officers  of  the  United  States  and  territorial  courts,  four 
hundred  and  twenty-five  copies;  to  the  Department  of 
Agriculture,  five  copies;  to  the  Smithsonian  Institution, 
two  copies;  to  the  Government  Printing- Office,  one  copy; 
1919 10 


146 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


Printed  copies 
to  be  evidence. 


and  the  Secretary  of  State,  shall  supply  deficiencies  and 
offices  newly  created.     Sec.  7,  ibid. 

428.  That  the  said  printed  copies  of  the  said  acts  of  each 
session  and  of  the  said  bound  copies  of  the  acts  of  each  Con- 
gress shall  be  legal  evidence  of  the  laws  and  treaties  therein 
contained,  in  all  the  courts  of  the  United  States  and  of  the 
several  States  therein.  Sec.  8,  ibid. 


ARMY  REGULATIONS. 


Par. 

429.  President  authorized  to  make 

and  publish  regulations  for 

the  Army. 


Par. 

430.  Secretary  of  War  to  cause  all 
regulations  now  in  force  to 
be  codified  and  published 
to  the  Army. 


President  au-     429.  That  so  much  of  the  act  approved  July  15,  1870, 

thonzed  to  make 

and  publish  reg-  entitled  "An  act  making  appropriations  lor  the  support  of 
limy. s          e  the  Army  for  the  year  ending  June  30,  1871.  and  for  other 

Mar.  1,  1875,  v.  ,,  .  .     ' 

is, p. 337.  purposes"  as  requires  the  system  of  General  ^Regulations 

for  the  Army  therein  authorised  to  be  reported  to  Congress 
at  its  next  session,  and  approved  by  that  body  be,  and  the 
same  is  hereby  repealed;  and  the  President  is  hereby 
authorised,  under  said  section,  to  make  and  publish  regu- 
lations for  the  government  of  the  Army  in  accordance  with 
existing  laws.1  Act  of  March  1,  1875  (18  Stat.  L.,  337). 

1  The  Army  Kegulations  derive  their  force  from  the  power  of  the  President  as  Com- 
mander in  Chief,  and  are  binding  upon  all  within  the  sphere  of  his  legal  and  consti- 
tutional authority.  Kurtz  v.  Moffatt,  115  U.  S.,  487,  503;  U.  S.  v.  Eliason,  16  Pet., 
291;  U.  S.  v.  Freeman,  3  How.,  556.  The  power  of  the  Executive  to  establish  rules 
and  regulations  for  the  government  of  the  Army  is  undoubted.  The  power  to  estab- 
lish implies,  necessarily,  the  power  to  modify  or  repeal,  or  to  create  anew.  The 
Secretary  of  War  is  the  regular,  constitutional  organ  of  the  President  for  the 
administration  of  the  military  establishment  of  the  nation,  and  orders  publicly 
promulgated  through  him  must  be  received  as  the  act  of  the  Executive  and,  as 
such,  be  binding  upon  all  within  the  sphere  of  his  legal  or  constitutional  authority. 
Such  regulations  can  not  be  questioned  or  defied  because  they  may  be  thought  unwise, 
or  mistaken.  U.  S.  v.  Eliason,  16  Pet.,  291,  302. 

The  term  regulations  of  an  Executive  Department  describes  rules  and  regulations 
relating  to  subjects  on  which  a  Department  acts,  which  are  made  by  the  head 
under  an  act  of  Congress  conferring  that  power,  and  thereby  giving  to  such  regula- 
tions the  force  of  law.  A  mere  order  of  the  President  or  of  a  Secretary  is  not  a 
regulation.  Harvey  v.  TJ.  S.,  3  C.  Cls.  R.,  38,  42;  Dig.  Opin.  J.  A.  Gen.,  166,  par.  1, 
and  note  1.  A  "regulation "  affects  a  class  of  officers;  an  "instruction  "  is  a  direc- 
tion to  govern  the  conduct  of  the  particular  officer  to  whom  it  is  addressed.  Lau- 
dram  v.  U.  S.,  16  C.  Cls.  R.,  74.  The  Army  Regulations  when  sanctioned  by  the 
President  have  the  force  of  law,  because  it  is  done  by  him  by  the  authority  of  law. 
U.  S.  v.  Freeman,  3  How.,  556;  Graciot  v.  D.  S.,  4  How.,  80;  Ex  parte  Reed,  100 
U.  S.,  13;  Smith  v.  U.  S.,  23  C.  Cls.  R.,  452.  When  Congress  permits  regulations  to 
be  formulated  and  published  and  carried  into  effect  from  year  to  year,  the  legisla- 
tive ratification  must  be  implied.  Maddox  v.  U.  S.,  20  C.  Cls.  R.,  193, 198. 

The  authority  of  the  head  of  an  Executive  Department  to  issue  orders,  regula- 
tions, and  instructions,  with  the  approval  of  the  President,  is  subject  to  the  condi- 
tion, necessarily  implied,  that  they  must  be  consistent  with  the  statutes  which 
have  been  enacted  by  Congress.  TJ.  S.  v.  Symonds,  120  U.  S.,  46,  49;  U.  S.  v.  Bishop, 
idem.,  51;  Dig.  Opin.  J.  A.  Gen.,  166,  par.  1,  note  2;  par.  6,  p.  168.  Regulations  can 
have  no  retroactive  effect.  TJ.  S.  v.  Davis,  132  U.  S.,  334.  Provision  of  statute  exists 
by  which  the  statute  regulations  of  the  Army  may,  within  certain  limits,  be  altered 
by  the  Secretary  of  War,  but  there  is  no  such  provision  in  regard  to  the  statute 
regulations  of  the  Navy.  6  Opin.  Att.  Gen.,  10 ;  8  ibid.,  337.  The  same  discrepancy 
exists  in  the  military  law  of  Great  Britain.  Ibid. 

Regulations  prescribed  and  framed  by  the  Secretary  of  War  and  which  are  in- 
tended for  the  direction  a.ad  government  of  the  officers  of  the  Army  and  agents  of 
the  Department  do  not  bind  the  Commander  in  Chief  nor  the  head  of  the  War  De- 
partment.  Burns  v.  TJ.  S.,  12  Wall.,  246;  Smith  v.  TJ.  S.,  24  C.  Cls.  R.,  209,  215. 
But  see  Arthur  v.  TJ.  S.,  16  C.  Cls.  R.,  422,  and  U.  S.  v.  Barrows,  1  Abb.,  351. 

Regulations  which  heads  of  Departments  are  expressly  authorized  to  make,  in 
which  the  public  is  interested,  become  a  part  of  that  body  of  public  records  of  which 
the  courts  take  judicial  notice.  Caha  v.  TJ.  S.,  152  U.  SM  211. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  147 


430,  That    the    Secretary  of   War  is   authorized    and  ^/tocaus^  an 
directed  to  cause  all  the  regulations  of  the  Army  now  in  regulations  now 

in  force  tobecod- 

force  to  be  codified  and  published  to  the  Army,  and  tojfied  and  pub- 
defray  the  expenses  thereof  out  of  the  contingent  fund  Army. 
of  the  Army.1     Sec.  2,  act  of  June  23,  1879  (21  Stat.  L.,  34).     isi™v 

1  The  Secretary  of  War  is  expressly  authorized  by  other  enactments  of  Congress 
to  prescribe  regulations  for  the  transportation,  safe-keeping,  and  distribution  of 
articles  of  supply  purchased  by  the  Quartermaster's  and  Subsistence  Departments 
(sec.  219,  R.  S.);  lor  the  preparation,  submission,  and  opening  of  bids,  act  of  April  10, 
1878  (20  Stat-  L.,  36)  ;  t'or  the  deposit  of  refuse  and  debris  from  rivers  that  is  calcu- 
lated to  interfere  with  navigation,  act  of  Aug.  5,  1886  (24  Stat.  L.,  329)  ;  for  the  deposit 
of  refuse  material  beyond  the  harbor  lines  established  in  accordance  with  statutes, 
sec.  11,  act  of  Sept.  11,  1890  (26  Stat.  L.,  455)  ;  for  the  use  of  the  channel  at  the  mouth 
of  the  Mississippi  River  wLich  has  been  improved  by  the  United  States,  act  of 
June  1,  1874  (18  Stat.  L.,  50)  ;  for  the  use  and  operation  of  canals  and  other  works  of 
river  and  harbor  improvement  which  have  been  purchased  or  constructed  by  the 
United  States,  sec.  4,  act  of  Aug.  17,  1894  (28  Stat.  L..  362);  for  the  construction  of 
bridges  across  the  navigable  waters  of  the  United  States;  for  the  use  of  certain 
drawbridges,  sec.  5  (ibid.);  to  secure  a  proper  administrative  examination  of  accounts 
sent  to  him  in  accordance  with  the  provisions  of  the  act  of  July  31,  1894  (28  Stat.  L., 
211);  to  carry  out  the  provisions  of  the  act  of  March  29,  1894  (28  Stat.  L.,  47),  in 
relation  to  property  returns,  etc. 

Regulations  may  be  divided  into  different  classes  with  respect  to  the  question  of 
the  power  of  the  person  making  the  regulation  to  authorize  an  exception  to  it. 
There  are,  or  may  be,  those  which  have  received  the  sanction  of  Congress,  and  it  is 
evident  that  the  Secretary  of  War  would  have  no  authority  to  make  an  exception  to 
one  of  these.  There  are  also  those  that  are  made  pursuant  to  and  in  aid  of  a  statute. 
These  may  be  modified,  but  until  this  is  done  are  binding  us  well  on  the  authority 
that  mado'them  as  on  others.  U.  S.  v.  Barrows,  1  Abbott,  351. 

There  is  also  a  large  body  of  other  regulations  emanating  from  and  depending 
solely  on  the  authority  of  the  President  as  Commander  in  Chief.  With  reference 
to  such  regulations  it  has,  I  believe,  been  sometimes  claimed  that  the  same  rule 
should  be  applied  to  them  that  is  applied  to  the  regulations  made  pursuant  to  stat- 
ute. But  this  has  not  been  done  in  practice,  and  I  do  not  think  that  it  should  be 
done,  for  the  reason  that  it  would  seem  to  be  an  unnecessary,  embarrassing,  and  per- 
haps unconstitutional  limitation  of  the  authority  of  the  President  as  Commander  in 
Chief.  Opin.  J.  A.  Gen.  March  5,  1896. 

HISTORICAL  NOTE. 

The  first  volume  of  Army  Regulations,  using  that  term  in  the  sense  in  which  it  is 
now  understood,  was  issued  to  the  Army  on  May  1,  1813,  under  the  authority  con- 
ferred by  the  act  of  March  3  of  that  year. 

From  March  29,  1779,  until  May  1,  1813,  the  "Regulations  for  the  Order  and  Disci- 
pline of  the  Troops  of  the  United  States  "  were  in  force.  They  were  prepared  by 
Major-General  Baron  Steuben,  the  Inspector-General  of  the  Army  during  the  latter 
part  of  the  war  of  the  Revolution,  and  consisted  in  great  part  of  matter  which 
would  now  be  properly  termed  drill  regulations.  The  work  was  first  printed  at 
Worcester,  Mass.,  in  1788,  and  was  formally  approved  and  adopted  by  Congress  on 
March  29,  1779.  The  last  edition  of  the  Steuben  regulations  appeared  in  1809,  and  it 
continued  in  use  as  a  drill  book  after  it  had  ceased  to  have  authority  as  a  volume  of 
army  regulations.  In  1808  a  small  volume  was  published,  apparently  with  the  sanc- 
tion' of  the  War  Department,  containing  the  Articles  of  War  which  had  been  enacted 
in  1806,  to  which  were  added  such  military  laws  as  were  then  in  force. 

Section  5  of  the  act  of  March  3,  1813  (2  Stat.  L.,  819),  required  the  Secretary  of  War 
to  prepare  general  regulations  which,  "when  approved  by  the  President  of  the 
United  States,  shall  be  respected  and  obeyed  until  altered  or  revoked  by  the  same 
authority."  The  volume  of  regulations  issued  in  pursuance  of  this  authority  was 
entitled  "Military  laws  and  rules  and  regulations  for  the  armies  of  the  United 
States,"  and  was  approved  by  the  President  on  May  1,  1813.  It  contained  the 
Articles  of  War  of  1806,  together  with  the  statutes  relating  to  the  military  estab- 
lishment and  a  small  number  of  regulations  properly  so  called.  Editions  of  this 
work  were  published  in  1814  and  1815,  the  latter,  however,  without  the  authority  of 
the  War  Department. 

The  act  of  April  24,  1816  (3  Stat.  L.,  298),  provided  that  the  "regulations  in  force 
before  the  reduction  of  the  Army  be  recognized  as  far  as  the  same  shall  be  found 
applicable  to  the  service,  subject,  however,  to  such  alterations  as  the  Secretary  of 
War  may  adopt  with  the  approbation  of  the  President."  In  accordance  with  this 
legislation  a  volume  of  regulations  was  issued  in  September,  1816,  and  in  January, 
1820,  a  new  edition  containing  the  orders  of  the  War  Department  issued  since  Sep- 
tember, 1816. 

Section  14  of  the  act  of  March  2,  1821  (3  Stat.  L.,  616),  contained  a  provision  that 
"the  system  of  regulations  prepared  by  Major-General  Scott  shall  be,  and  the  same 
are  hereby,  approved  and  adopted  for  the  government  of  the  Army  of  the  United 
States  and  of  the  militia  when  in  the  service  of  the  United  States."  These  regu- 
lations were  approved  by  President  Monroe  and  published  to  the  Army  in  July,  1821. 
On  May  7,  1822,  section  14  of  the  act  of  March  2,  1821,  was  formally  repealed,  thus 
withdrawing  the  legislative  sanction  which  had  been  conferred  by  the  statute  above 
cited.  As  to  this  enactment  Attorney-General  Wirt  advised  that,  "notwithstanding 
such  repeal,  the  regulations  having  received  the  sanction  of  the  President,  continued 
in  force  by  the  authority  of  the  President  in  all  cases  where  they  did  not  conflict 
with  positive  legislation."  (1  Opin.  Att.  Gen.,  549.)  The  Regulations  of  1821  were 


148 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


THE   ARMY  REGISTER. 


Par.  Par. 

431.  Army    Register    to    be    fur-     433.  Schedule  of  pay  to  appear. 

nished      annually    to    the    434.  Volunteer  rank. 
Senate.  435.  Lineal  rank. 

432.  The    same  to    be   furnished 

annually  to  the  House  of 
Representatives. 

Army  Register     431.  That  the  Secretary  of  War  and  the  Secretary  of  the 
annuaii^tTtheNavybe  requested  to  furnish  annually,  on  the  first  of  Jan- 
esene'res.  Dec.  uary,  each  member  of  the  Senate  with  a  copy  of  the  Reg- 
ister of  the  officers  of  the  Army  and  Navy  of  the  United 
States.     Senate  resolution,  December  13,  1815. 

fuSh^annu6  432<  That  the  Secretary  of  War  cause  to  be  annually  laid 
ally  to  the  House  before  this  House  a  number  of  copies  of  the  printed  army 
tives.  list,  equal  to  the  number  of  members  of  the  House.  House 

Hous  ores. 

Feb.  i,  1830.        resolution,  February  17 1830. 

! — : . , . 

revised  under  the  direction  of  General  Scott  and  a  new  edition  was  issued  on  March 
1,  1825,  which  continued  in  force  until  1835. 

A  volume  of  General  Regulations,  compiled  under  the  direction  of  Major-Ganeral 
Macomb,  was  printed  and  prepared  for  issue  on  September  1, 1835,  but  was  not  for- 
mally approved  and  promulgated  until  December  31,  1836.  A  second  edition  of  this 
work,  with  some  modifications,  was  issued  in  1841,  and  a  third  edition,  containing 
alterations  and  amendments,  which  had  been  promulgated  in  orders  or  taken  from 
former  volumes  of  regulations,  was  issued  to  the  Army  on  May  1, 1847. 

On  January  1, 1857,  a  volume  of  Army  Regulations,  containing  a  number  of  impor- 
tant modifications,  together  with  a  general  rearrangement  of  paragraphs  and  subject 
matter,  was  prepared  under  the  direction  of  Secretary  Davis,  and  published  with 
the  approval  of  the  President  on  January  1, 1857.  This  volume  continued  in  force 
until  August  10, 1801,  when  it  was  replaced  by  a  revised  edition ;  a  second  edition  of 
this  work  was  issued  on  June  25,  1863,  containing  the  "changes  and  laws  affecting 
Army  Regulations  and  Articles  of  War." 

The  thirty-seventh  section  of  the  act  of  July  28, 1866  (14  Stat.  L.,  337),  directed 
the  Secretary  of  War  "to  have  prepared  and  to  report  to  Congress  at  its  next  ses- 
sion a  code  of  regulations  for  the  government  of  the  Army  and  of  the  militia  in 
actual  service,  which  shall  embrace  all  necessary  orders  and  forms  of  a  general  char- 
acter for  the  performance  of  all  duties  incumbent  on  officers  and  men  in  the  mili- 
tary service,  including  rules  for  the  government  of  courts-martial;  the  existing 
regulations  to  remain  in  force  until  Congress  shall  have  acted  on  said  report."  No 
code  of  regulations  having  been  submitted,  Congress  provided,  in  section  20  of  the 
actof  July  15, 1870  (16  Stat.  L.,  319),  that  "the  Secretary  of  War  shall  prepare  a  system 
of  general  regulations  for  the  administration  of  the  affairs  of  the  Army,  which,  when 
approved  by  Congress,  shall  be  in  force  and  obeyed  until  altered  or  revoked  by  the 
same  authority,  and  said  regulations  shall  be  reported  to  Congress  at  its  next  session : 
Provided,  That  the  said  regulations  shall  not  be  inconsistent  with  the  laws  of  the 
United  States." 

In  conformity  to  this  legislation  a  code  of  regulations,  which  had  been  prepared  by  a 
board  of  officers  of  which  inspector-General  Marcy  was  the  president,  was  submitted 
to  the  House  of  Representatives  on  February  17, 1873,  and  was  by  that  body  referred 
to  the  Committee  on  Military  Affairs  and  ordered  to  be  printed.  No  steps  looking  to 
their  adoption  were  taken  during  the  remainder  of  the  session,  and  the  Fifty-second 
Congress  adjourned  without  action.  The  question  was  taken  up  by  the  Military 
Committee  of  the  House  of  Representatives  in  the  Forty-third  Congress,  and  the 
proposition  of  adopting  a  code  of  Army  Regulations  was  carefully  considered.  Tho 
conclusion  reached  by  the  committee  was  that  the  power  to  make  and  amend  or  alter 
regulations  had  best  be  left  to  Executive  discretion.  To  that  end  a  recommendation 
was  submitted,  which  was  adopted  by  Congress  and  approved  by  the  President  on 
March  1, 1875  (18  Stat.  L.,  337).  This  enactment  repealed  section  20  of  the  act  of  July 
15, 1870,  and  authorized  the  President  "to  make  and  publish  regulations  for  the  gov- 
ernment of  the  Army  in  accordance  with  existing  laws." 

Section  2  of  the  act  of  June  23,  1879  (21  Stat.  L.,  34),  authorized  and  directed  the 
Secretary  of  War  "to cause  all  the  regulations  now  in  force  to  bo  codified  and  pub- 
lished to  the  Army, "  and  provided  that  the  expense  attending  the  publication  of 
the  work  should  be  defrayed  from  the  appropriation  for  the  contingent  expenses  of 
the  Army  for  the  current  fiscal  year.  Under  the  authority  thus  conferred  the  Regu- 
lations of  1881  were  prepared  and  issued  to  the  A.rmy,  the  order  of  promulgation  bear- 
ing date  February  17,  1881.  A  revision  and  condensation  of  this  volume  was  issued 
by  the  Secretary  of  War  on  February  9, 1889.  The  Regulations  now  in  force  became 
effective  on  October  31, 1895,  having  received  Executive  approval  on  that  date. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  149 

433.  That  there  be  annexed  annually  hereafter  to  thepaSc^dule  of 


1"  es< 


Army  Register  an  accurate  schedule  of  the  pay  and  emolu 
inents,  with  the  commutation  value  thereof,  to  which  the 
various  officers  of  the  Army  of  each  grade  are  entitled. 
House  resolution,  August  30,  1842. 

434.  The  highest  volunteer  rank  which  has  been  held  by  rajk°gt"  n  *  e  er 
officers  of  the  Kegular  Army  shall  be  entered,  with  their 

•  •       i  .-I  -r-»       •  S0c.  1226)  R.  S. 

names,  respectively,  upon  the  Army  Eegister. 

435.  That  in  every  Official  Army  Register    hereafter  et£ineal  rank- 
issued  the  lineal  rank  of  all  officers  of  the  line  of  the 

Army  shall  be  given  separately  for  the  different  arms  of 
the  service  5  and  if  the  officer  be  promoted  from  the  ranks, 
or  shall  have  served  in  the  volunteer  army,  either  as  an 
enlisted  man  or  officer,  his  service  as  a  private  and  non- 
commissioned officer  shall  be  given,  and  in  addition  thereto 
the  record  of  his  service  as  volunteer.  Sec.  2,  act  of  June 
18,  1878  (20  Stat.  L.,  149}. 


CHAPTER  XI. 


THE  MILITARY  ESTABLISHMENT— GENERAL 
PROVISIONS  OF  ORGANIZATION— GENERAL 
OFFICERS,  AIDS,  AND  MILITARY  SECRE- 
TARIES. 

OBGANIZATION. 


Par. 

436.  Composition  of  the  Army  of 

the  United  States. 

437.  Commissions    not  to  be  va- 

cated. 

438.  Number  of  enlisted  men. 

439.  Indian  scouts. 


Par. 

440.  Original  number  of,  restored. 

Allowance  for  horses. 

441.  Lieutenant-General's      aids 

and  secretary. 

442.  Aids  of  major  and  brigadier 

generals. 


Composition  of 
the  Army  of  the 
United  States. 

Mar.  3,  1799,  v. 
l,p.752;  July  25, 
1866,  v.  14.  p.  223; 
July  28,  1866,  r, 
14,  p.  332;  Mar.  3, 
1869,  v.  15,  p.  318 ; 
July  15,  1870,  v. 
16,  p.  318,  ch.131; 


436.  The  Army  of  the  United  States  shall  consist  of—- 
One General.1 
One  Lieutenant-General.2 
Three  major-generals. 

i  This  grade  ceased  to  exist  at  the  death  of  Gen.  P.  H.  Sheridan  on  August  5, 1888.  a 
'This  grade  ceased  to  exist,  as  a  grade  of  rank  on  the  active  list  of  the  Army,  at 

Mar  3, 1875,  v~  18,'  the  retirement  of  Lieutenant-General  Schofield  on  September  29,  1895. 

p.   419,    ch.    142;  — 

7Q3'  JT75' V'  OR'  a  ™8  office  was  created  by  section  9  of  the  act  of  March  3, 1799  (1  Stat.  L.,  752) ,  which 
iv ;  j  une  /o,  provided  that ' '  a  commander  of  the  Army  of  the  United  States  shall  be  appointed  and 
J>  v"  ,'oP.A  '  commissioned  by  the  style  of  'General  of  the  armies  of  the  United  States."'  No 
^'101  T?  K'O^'  appointment  was  made  to  the  office  thus  created,  and  the  grade  was  abolished,  by 
iQ7?'  10  ofi  implication,  by  sections  of  the  act  of  March  16, 1802  (2  Stat.L.,  133).  It  was  revived 
T  i  '  ^f  i&fl  '  by  tfae  act  of  July  25, 1866  (14  Stat.  L.,  223),  and  recognized  and  continued  by  section 
10  y  07  V'  9  of  the  act  of  July  28>  1866  <u  Stat-  L-'  333>-  Section  6  of  the  act  of  July  15,  1870 

l»,p.y/.  (16  gtat  L  (  31g)(  contained  a  provision,  however,  that  "the  offices  of  General  and 

no  in q  T  i  oq  Lieutenant-General  shall  continue  until  a  vacancy  shall  exist  in  the  same,  and  no 
f»8^  -  91  ifi7  l°nger;  and  when  such  vacancy  shall  occur  in  either  of  said  offices,  immediately 
J»8t>,  v.^54  p.io/;  thereupon  all  laws  and  parts  of  laws  creating  said  office  shall  become  inoperative, 
<M  XQ*  T  on  and  8na11  b.y  virtue  of  this  act  from  thenceforward  be  held  to  be  repealed."  The 
Ton?  o«  ?«-7  office  ceased  to  exist,  as  a  grade  of  military  rank,  at  the  death  of  Gen.  W .  T.  Sherman, 
1890,  v  ^b  p.lb/;  OQ  Feuruary  14)  1891>  T£e  act  Of  March  3,  1885  (23  Stat.  L.,  434),  authorized  the 
27  27  V'  aPPointment  °f  a  "General  of  the  Army  on  the  retired  list,"  Ayhich  was  conferred 

1  P'  upon  Gen.  Ulysses  S.  Grant,  and  expired  at  the  death  of  that  officer  on  July  23, 1885. 

«      10Q4  R  «   By  the  act  of  June  ],  1888  (25  Stat.  L.,  165),  the  grade  of  Lieutenant-General  was 
set.iuwt,  n. ».  discontinued  and  merged  in  that  of  General  of  the  Army,  which  was  to  continue 
during  the  lifetime  of  the  Lieutenant-General  then  in  office,  when  it  was  to  cease. 
See  note  1,  supra. 

Chief  of  staff  to  the  General  of  the  Army. —The  office  of  chief  of  staff  to  the  Lieu- 
tenant-General was  created  by  the  act  of  March  3,  1865  (13  Stat.  L.,  500),  which 
authorized  the  President  to  appoint  a  chief  of  staff  to  the  Lieutenant-General  of  the 
Army  with  the  rank,  pay,  and  emoluments  of  a  brigadier-general  in  the  Army. 
Section  2  of  the  act  of  July  25,  1866  (14  Stat.  L.,223j,  provided  for  the  transfer  of  the 
office  to  the  staff  of  the  General  of  the  Army.  The  office  was  abolished  by  the  act 
of  April  3, 1869  (16  Stat.  L.,  6). 

150 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.          151 

Six  brigadier-  generals. 

Five  regiments  of  artillery. 

Ten  regiments  of  cavalry. 

Twenty-five  regiments  of  infantry. 

An  Adjutant-General's  Department. 

An  Inspector-General's  Department. 

A  Quartermaster's  Department.1 

[A  corps  of  Army  service  men.]2 

A  Subsistence  Department.3 

A  Corps  of  Engineers. 

A  battalion  of  engineer  soldiers. 

An  Ordnance  Department. 

The  enlisted  men  of  the  Ordnance  Department. 

A  Pay  Department. 

A  Medical  Department. 

[A  Hospital  Corps.]4 

[A  Signal  Corps.]5 

[A  Judge-  Advocate-General's  Department.] 

[A  Chief  of  the  Record  and  Pension  Office.]6 

Thirty  post-chaplains.     Four  regimental  chaplains. 

One  band,  stationed  at  the  Military  Academy.7 

A  force  of  Indian  scouts,  not  exceeding  one  thousand, 
and  the  professors  and  corps  of  cadets  of  the  United  States 
Military  Academy. 

Provided,  That  when  a  vacancy  occurs  in  the  office  of 
General8  or  Lieutenant-General9  such  office  shall  cease  and 
all  enactments  creating  or  regulating  such  offices  shall, 
respectively,  be  held  to  be  repealed. 

437.  None  of  the  provisions  of  this  Title,  relating  to 


organization  of  the  Army,  shall  be  construed  to  vacate  the    July  28,  is'ee,  c. 

299,  s.  31,  v.  14,  p. 

commission  of  any  officer  now  properly  in  the  service,  or  337. 
borne  on  the  Army  Register  as  an  officer  retired  from   sec.  1217,  B.  s. 
active  service,  or  to  require  new  appointments  to  fill  the 
grades  mentioned  herein,  which  are  now  properly  filled 
according  to  said  provisions. 

1  The  corps  of  quartermaster-sergeants  added  by  the  act  of  July  5,  1884.  a 

2  The  corps  of  Army  service  men  added  by  the  act  of  June  20,  1890.  a 

3  A  force  of  post  commissary-sergeants  (6)  added  by  section  1142,  .Rev.  Stat. 

4  The  Hospital  Corps  added  by  the  act  of  March  1,  1887,  the  hospital  stewards 
previously  authorized  being  merged  in  the  corps  so  created,  c 

«The  Signal  Corps  reorganized  by  act  of  October  1,  1890  (26  Stats.  L.,  653). 

6  The  Record  and  Pension  Office  created  by  the  act  of  May  9,  1892  (27  Stat.  L.,  27). 

'Fifteen  bands  were  authorized  by  section  7  of  the  act  of  July  28,  1866  (14  Stat. 
L.,  332).  By  the  act  of  March  3,  1889  (15  Stat.  L.,  318),  they  were  required  to  be 
honorably  discharged  without  delay,  with  the  exception  of  the  band  stationed  at 
the  Military  Academy. 

"This  grade  ceased  to  exist  at  the  death  of  Gen.  P.  H.  Sheridan  on  August  5,  1888. 

9  This  grade  ceased  to  exist,  as  a  grade  of  rank  on  the  active  list  of  the  Army,  at 
the  retirement  of  Lieutenant-General  Schofield  on  September  29,  1895. 

a  See  the  chapter  entitled  THE  QUARTERMASTER'S  DEPARTMENT. 
b  See  the  chapter  entitled  THE  SUBSISTENCE  DRPARTMENT. 
cSee  the  chapter  entitled  THE  MEDICAL  DEPARTMENT. 


152  THE   MILITARY   LAWS    OF   THE   UNITED   STATES. 

en-     433.  There  shall  not  be  in  the  Array  at  one  time  more 


listed  men. 

July  is,  1870,  c.  than  thirty  thousand  enlisted  men.1 

294,  8.  2,  v.  16,  p.  J 


317  ;  June  16,  1874,  c.  285,  v.  18,  p.  72  ;  Mar.  3,  1875,  c.  133,  v.  18,  p.  452  ;  Jul  y  24, 
.  19,  p.  97;  Aug.  15,  1876,  c.  301,  v.  19,  p.  204.     Sec.  1115,  R.  S. 


1876,  c.  226,  v. 


Indian  scouts.     439   rpne  presi(ieilt  is  authorized  to  enlist  a  force  of  In- 

July  28,  18oo,  c. 

299,  B.  e,  v.  14,  P  dians,  not  exceeding  one  thousand,  who  shall  act  as  scouts 
B  in  the  Territories  and  Indian  country.    They  shall  be  dis- 

&OC*  1  I  1  —  «  I*..  o» 

charged  when  the  necessity  for  their  service  shall  cease,  or 
at  the  discretion  of  the  department  commander. 
original  num-     449.  That  so  much  of  the  Army  appropriation  act  of 

ber  of,  restored. 

2,  1876,  v.  twenty-fourth  July,  eighteen  hundred  and  seventy-six,  as 
limits  the  number  of  Indian  scouts  to  three  hundred  is 
hereby  repealed  5  and  sections  ten  hundred  and  ninety  -four 
and  eleven  hundred  and  twelve  of  the  Revised  Statutes, 
authorizing  the  employment  of  one  thousand  Indian  scouts, 
are  hereby  continued  in  force  :  Provided,  That  a  propor- 
tionate number  of  non-commissioned  officers  may  be  ap- 
pointed. And  the  scouts,  when  they  furnish  their  own 
Allowance  forhorses  and  horse-equipments,  shall  be  entitled  to  receive 
forty  cents  per  day  for  their  use  and  risk  so  long  as  thus 
employed.  Act  of  August  12,  1876  (19  Stat.  L.,  131). 

GENERAL  OFFICERS,  AIDS,  AND  MILITARY  SECRETARIES. 

441-  Tne  Lieutenant-  General  may  select  from  the  Army 
tS3e  c.  *wo  aids  and  one  military  secretary,  who  [shall]  have  the 
223  -8'  j'uTy14'28'  rank  of  lieutenant-colonel  of  cavalry  while  serving  on  his 

1866,  c.  299,  s.  gi 
v.  14,  p.  3 

27,  1877, 


v.  14,  p.  333;  Feb. 

c.  69,  v.  19,  p.  241.    Sec.  1097,  R.  S. 


andibri°fa1dije0r     442t  EaclL  major-general  shall  have  three  aids,  who  may 
generals.          be  selected  by  him  from  captains  or  lieutenants  of  the 

1  The  acts  of  June  16,  1874  (18  Stat.  L.,  72),  March  3,  1875  (18  Stat.  L.,  452),  July  24, 
1876  (19  Stat.  L.,  97),  November  21,  1877  (20  Stat.  L.,  2),  and  June  )8,  1878  (20  Stat.  L., 
146),  contained  a  provision  limiting  the  number  of  enlisted  men  in  the  Army  to  25,000, 
including  hospital  stewards  and  Indian  scouts.     The  act  of  June  23,  1879  (21  Stat.  L., 
30),  contained  the  requirement  that  "no  money  appropriated  by  this  act  shall  be 
paid  for  recruiting  the  Army  beyond  the  number  of  twenty-five  thousand  enlisted 
men,  including  Indian  scouts  and  hospital  stewards  ;  and  thereafter  there  shall  be 
no  more  than  twenty-five  thousand  enlisted  men  in  the  Army  at  anyone  time,  unless 
otherwise  authorized  by  law."     This  provision  was  repeated  in  the  acts  of  May  4, 
1880  (21  Stat.  L.,  110),  February  24,  1881  (21  Stat.  L.,  346),  June  30,  1882  (22  Stat.  L  ,  117), 
March  3,  1883  (22  Stat.  L.,  456),  Julv  5,  1884  (23  Stat.  L.,  107),  and  March  3,  1885  (23  Stat. 
L.,357). 

Sections  6  and  7  of  the  act  of  July  29,  1861  (12  Stat.  L.,279),  increasing  the  mili- 
tary establishment,  declared  such  increase  to  be  for  the  period  of  the  existing  re- 
bellion and,  unless  otherwise  ordered  by  Congress,  authorized  the  military  estab- 
lishment to  be  reduced  to  a  number  not  exceeding  twenty  five  thousand  men  "within 
one  year  after  the  constitutional  authority  of  the  Government  of  the  United  States 
shall  be  reestablished,  and  organized  resistance  to  such  authority  shall  no  longer 
exist." 

2  The  office  of  Lieutenant-General  was  created  by  section  5  of  the  act  of  May  28,  1798 
(1  Stat.  L.,558),  but  was  abolished  by  section  9  of  the  act  of  March  3.  1799  (1  Stat. 
TLi.,  752),  creating  the  grade  of  general.    It  was  revived  by  joint  resolution  No.  9  of 
February  15,  1855  (10  Stat.  L.,  723),  and  conferred,  by  brevet,  on  Maj.  Gen.  Winfield 
Scott,  and  ceased  to  exist  at  the  death  of  that  officer  on  May  29,  3866.    It  was  again 
revived  by  the  act  of  February  29,  1864  (13  Stat.  L.,  11),  and  recognized  and  con- 
tinued by  section  9  of  the  act  oif  July  28,  1866,  subject  to  the  provision  embodied  in 
section  6  of  the  act  of  July  15,  1870,  above  cited.    By  joint  resolution  No.  9,  of  Feb- 
ruary 5,  1895  (28  Stat.  L.,  968),  the  grade  of  lieutenant-general  was  revived  for  the 
third  time,  with  the  proviso  that  "  when  the  office  had  been  once  filled  and  had  be- 
come vacant,  the  resolution  should  expire  and  become  of  no  effect."    See  note  2  to 
paragraph  506,  ante. 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  153 

Army,  and  each  brigadier-general  shall  have  two  aids,  who  2/u8ly321v1861'c' 
may  be  selected  by  him  from  lieutenants  of  the  Army.128°;  July  2?] 

looo,  c.  299,  8.  9, 
v.  14,  p.  333. 

1 A  major- general  is  allowed  by  law  three  aids,  to  be  taken  from  capt;dns  or  lieu- 
tenants of  the  Army.  A  brigadier-general  is  allowed  two,  to  be  taken  from  the  Sec.  1098,  B.  S. 
lieutenants  of  the  Army.  An  officer  assigned  to  duty  in  accordance  with  his  brevet 
rank  as  major-general  or  brigadier-general  may,  with  the  special  sanction  of  the 
War  Department,  be  allowed  the  aids  of  the  grade.  General  officers  may  select 
their  aids  from  officers  serving  in  their  commands,  subject  to  the  restrictions  herein 
prescribed,  but  appointments  as  aids  of  officers  serving  without  such  limits  must 
receive  the  approval  of  the  Secretary  of  War.  An  officer  will  be  appointed  aid  to  a 
general  officer  only  after  he  shall  have  actually  served  with  troops  for  at  least  three 
of  the  five  years  immediately  preceding  such  appointment.  He  will  hold  such 
appointment  for  no  longer  period  than  four  years,  except  that,  upon  the  request  of 
a  general  officer  whose  retirement  by  reason  of  age  will  occur  within  one  year,  the 
tour  of  four  years  may  be  extended  by  the  Secretary  of  War  to  the  date  of  such 
retirement.  (Par.  33,  A.  R.,  1895.) 

For  statutory  provisions  and  executive  regulations  respecting  the  staffs  of  general 
officers  when  assigned  to  commands  see  the  chapter  entitled  RANK  AND  COMMAND- 
TACTICAL  AND  TERRITORIAL  ORGANIZATIONS. 


CHAJPTER  XII. 


BANK  ASTD  COMMAND— TACTICAL  AND  TEEEI- 
TORIAL  ORGANIZATIONS. 


Par. 

443.  Command,     when     different 

corps  happen  to  join. 

444.  Regular   and  volunteer  offi- 

cers on  same  footing  as  to 
rank,  etc. 

445.  Rank  of  militia  officers  when 

on  duty   with   regular  or 
volunteer  forces. 

446.  Relative  rank  of  army  and 

navy  officers. 

447.  Relative    rank,    how   deter- 

mined. 

448.  Assignments  to  duty  accord- 

ing to  brevet  rank. 


Par. 

449.  Assignment  and  transfer  of 

engineers. 

450.  Medical  officers  not  to  com- 

mand in  line  or  in  other 
staff  corps. 

451.  Pay  officers  not  to  command 

in  line  or  in  other    staff 
corps. 

452.  Tactical  organizations. 

453.  Military  headquarters,  loca- 

tion. 

454.  The  same. 


Command, 
rhen    different 


443,  If,  upon  inarches,  guards,  or  in  quarters,  different 
corps  happen  to  corps  of  the  Army  happen  to  join  or  do  duty  together,  the 
122  Art.  war.  on^cer  highest  in  rank  of  the  line  of  the  Army,  Marine 
Corps,  or  militia,  by  commission,  there  on  duty  or  in  quar- 
ters, shall  command1  the  whole,  and  give  orders  for  what 

'The  terms  "rank"  and  "command"  have  received  Executive  interpretation  in 
paragraphs  7  and  13  of  the  Army  Regulations  of  1895. 

Military  rank  is  that  character  or  quality  bestowed  on  military  persons  which 
marks  their  station,  and  confers  eligibility  to  exercise  command  or  authority  in  the 
military  service  within  the  limits  prescribed  by  law.  It  is  divided  into  degrees  or 
grades,  which  mark  the  relative  positions  and  powers  of  the  different  classes  of  per- 
sons possessing  it.  (Par.  7,  A.  R.,  1895.) 

Rank  is  generally  held  by  virtue  of  office  in  a  regiment,  corps,  or  department,  but 
may  be  conferred  independently  of  office,  as  in  the  case  of  retired  officers  and  of  those 
holding  it  by  brevet.  (Par.  8,  A.  R.,  1895.) 

The  following  are  the  grades  of  rank  of  officers  and  noncommissioned  officers : 
1.  Major-general. 


1 1 .  Quartermaster  sergeant  (regimental) . 

12.  Ordnance,  commissary,  and  post  quar- 

termaster-sergeant, hospital  stew- 
ard, first-class  sergeant  of  the  Signal 
Corps,  chief  musician,  principal 
musician,  chief  trumpeter,  and 
saddler  sergeant. 

13.  First  sergeant. 

14.  Sergeant  and  acting  hospital  steward. 

15.  Corporal. 

In  each  grade,  date  of  commission,  appointment,  or  warrant  determines  the  order 
of  precedence.  (Par.  9,  A.  R.,  1895.) 

A  determination  by  the  legislative  and  executive  branches  of  the  Government,  as 
to  the  relation  or  superior  authority  among  military  officers,  is  conclusive  upon  the 
judiciary.  De  Celis  v.  U.  S.,  13  C.  Cls.  R.,  117. 

154 


2.  Brigadier-general. 

3.  Colonel. 

4.  Lieutenant-colonel. 

5.  Major. 

6.  Captain. 

7.  First  lieutenant. 

8.  Second  lieutenant, 

9.  Cadet. 

10.  Sergeant-major  (regimental). 


THE    MILITARY    LAWS   OF   THE    UNITED    STATES.  155 

is  needful  to  the  service,  unless  otherwise  specially  directed 
by  the  President,  according  to  the  nature  of  the  case.  One 
hundred  and  twenty-second  article  of  war. 

444.  In  all  matters  relating  to  the  rank,  duties,  and  rights  v^^eTA^- 
of  officers,  the  same  rules  and  regulations  shall  apply  tocers  on  same 

footing   as   to 

officers  of  the  Eegular  Army  and  to  volunteers  commis-  rank,  etc. 

,   .  ,    .     ,  ...  .  ,         ,,       ..  „     Mar.  2,  1867,  c. 

sioned  in,  or  mustered  into  said  service,  under  the  laws  of  159,  s.  2,  v.  u,  p. 
the  United  States,  for  a  limited  period.1     One  hundred  and 
twenty-third  article  of  war.  123  Art*  Wan 

445.  Officers  of  the  militia  of  the  several  States,  when  .  Rank  of  mm- 
called  into  the  service  of  the  United  States,  shall  on  all  on  duty  with  reg- 

,  . .    ,  ,       , ,  ,  ,          .       .,         ular  or  volunteer 

detachments,  courts-martial,  and  other  duty  wherein  they  forces. 

,  i  ,   .  ...  •  i     ,*,  i  i  Mar.  2,  1867,  c. 

may  be  employed  in  conjunction  with  the  regular  or  volun- 159,  s.  2,  v.  u,  p. 

teer  forces  of  the  United  States,  take  rank  next  after  all 431 

officers  of  the  like -grade  in  said  regular  or  volunteer  forces,    m  Art* War* 

notwithstanding  the  commissions  of  such  militia  officers 

may  be  older  than  the  commissions  of  the  said  officers  of 

the  regular  or  volunteer  forces  of  the  United  States.     One 

hundred  and  twenty-fourth  article  of  war. 

446.  The  relative  rank  between  officers  of  the  Navy,    Relative  rank 
whether  on  the  active  or  retired  list,  and  officers  of  the  army  officers. 
Army,  shall  be  as  follows,  lineal  rank  only  being  considered :  iss.l'is,  v.  12,' p! 

The  Vice- Admiral  shall  rank  with  the  Lieutenant-General.  c8e,;  s.ei? V.Ys^p'. 

Eear-admirals  with  major-generals. 

Commodores  with  brigadier- generals. 

Captains  with  colonels.  fi 

Commanders  with  lieu  tenant- colonels.  472> 

Lieutenant-commanders  with  majors.  Sec.i466,B.s. 

Lieutenants  with  captains. 

Lieutenants,  junior  grade,  with  first  lieutenants. 

Ensigns  with  second  lieutenants. 

1  Command  is  exercised  by  virtue  of  office  and  the  special  assignment  of  officers 
holding  military  rank  who  are  eligible  by  law  to  exercise  command.  Without 
orders  from  competent  authority  an  officer  can  not  put  himself  on  duty  by  virtue  of 
his  commission  alone,  except  as  contemplated  in  the  twenty-fourth  and  one  hundred 
and  twenty-second  articles  of  war.  (Par.  13,  A.  R.,  1895.) 

The  following  are  the  commands  appropriate  to  each  grade : 

1.  For  a  captain,  a  company. 

2.  For  a  major  or  lieutenant-colonel,  a  battalion  or  squadron. 

3.  For  a  colonel,  a  regiment. 

4.  For  a  brigadier-general,  two  regiments. 

5.  For  a  major-general,  four  regiments.     (Par.  14,  A.  R.,  1895.) 

The  functions  assigned  to  any  officer  in  these  regulations  by  title  of  office  devolve 
upon  the  officer  acting  in  his  place,  except  when  otherwise  specified.  An  officer  in 
temporary  command  shall  not,  except  in  urgent  cases,  alter  or  annul  the  standing 
orders  of  the  permanent  commander  without  authority  from  the  next  higher  com- 
mander. (Par.  15,  A.  R.,  1895.) 

An  officer  who  succeeds  to  any  command  or  duty  stands  in  regard  to  his  duties  in 
the  same  situation  as  his  predecessor.  The  officer  relieved  will  turn  over  to  his  suc- 
cessor all  orders  in  force  at  the  time  and  all  the  public  property  and  funds  pertain- 
ing to  his  command  or  duty,  and  will  receive  therefor  duplicate  receipts  showing 
the  condition  of  each  article.  (Par.  16,  A.  R.,  1895.) 

When  an  officer  is  charged  with  directing  an  expedition  or  making  a  reconnois- 
sance,  without  having  command  of  the  escort,  the  commander  of  the  escort  will 
consult  him  touching  all  arrangements  necessary  to  secure  the  success  of  the  oper- 
ation. (Par.  19,  A.  R.,  1895.)  For  statutory  provisions  respecting  the  exercise  of 
command  by  staff  officers  see  the  chapter  called  THE  STAFF  DEPARTMENTS.  See,  also, 
paragraphs  17  and  18,  A.  R.,  1895. 


156  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

Relative  rank,     447^  jn  fixing  relative  rank l  between  officers  of  the  same 

how  determined. 

Mar.  2, 1867,  c.  grade  and  date  of  appointment  and  commission,  the  time 

159,  a.  1,  v.  14,  p.  . 

434.  which  each  may  have  actually  served  as  a  commissioned 

sec.  1 219,  B.S.  officer  of  the  United  States,  whether  continuously  or  at 
different  periods,  shall  be  taken  into  account.  And  in 
computing  such  time,  no  distinction  shall  be  made  between 
service  as  a  commissioned  officer  in  the  Regular  Army  and 
service  since  the  19th  day  of  April,  1861,  in  the  volunteer 
forces,  whether  under  appointment  or  commission  from  the 
President  or  from  the  governor  of  a  State. 

duty8iSc°oerdin^     448-  Officers  may  be  assigned  to  duty  or  command  accord- 
to  brevet  rank.   jng  ^o  £nejr  brevet  rank  by  special  assignment  of  the  Pres- 
Sec.i2ii,R.s.  ident;    and   brevet  rank  shall  not  entitle  an  officer  to 

precedence  or  command  except  when  so  assigned. 

and8tran8fereiof     449.  Engineers  shall  not  assume  nor  be  ordered  on  any 

6ITpr !6io,'i806,  c.  duty  beyond  the  line  of  their  immediate  profession,  except 

2curt.  es,  v.  2,  p.  by  the  special  order  of  the  President.2    They  may,  at  the 

sec  ii58  R  s  discretion  of  the  President,  be  transferred  from  one  corps 

to  another,  regard  being  paid  to  rank. 

L-     450.  Officers  of  the  Medical  Department  of  the  Army 
inaontherD8taffed0er  shall  not  be  entitled,  in  virtue  of  their  rank,  to  command 

PaSeSTl69,B.S.  in  tue  line  °r  in  Other  staff  COrpS.3 

Pay  officers  not     451.  Officers  of  the  Pay  Department  shall  not  be  entitled. 

to    command   in  .  . 

line  or  in  other  m  virtue  of  their  rank,  to  command  in  the  line  or  in  other 

staff     depart- 

inents.  Staff  COrpS.3 

Sec.ll83,B.S.  TACTICAL  ORGANIZATIONS. 

izJtaonicalorgan      ^^'  *n  ^e  OI>dinary  arrangement  of  the  Army  two  regi- 
Mar.  3,^1799,^.  inents  of  infantry  or  of  cavalry  shall  constitute  a  brigade, 
and  shall  be  the  command  of  a  brigadier-general,  and  two 
'  brigades  shall  constitute  a  division,  and  shall  be  the  com- 
mand of  a  major-general ;  but  it  shall  be  in  the  discretion 
of  the  commanding  general  to  vary  this  disposition  when- 
ever he  may  deem  it  proper  to  do  so.4 

1  Officers  of  the  Regular  Army,  Marine  Corps,  and  volunteers  when  commissioned 
or  mustered  into  the  service  of  the  United  States,  being  upon  equal  footing,  take 
precedence  in  each  grade  by  date  of  commission  or  appointment.    Militia  officers, 
when  employed  with  the  regular  or  volunteer  forces  of  the  United  States,  take  rank 
next  after  all  officers  of  like  grade  in  those  forces.     (Par.  11,  A.  R.,  1895.) 

Between  officers  of  the  same  grade  and  date  of  appointment  or  commission, 
other  than  through  promotion  by  seniority,  relative  rank  is  determined  by  length  of 
service,  continuous  or  otherwise,  as  a  commissioned  officer  of  the  United  States, 
either  in  the  Regular  Army  or,  since  April  19, 1861,  in  the  volunteer  forces.  When 
periods  of  service  are  equal,  precedence  will,  except  when  fixed  by  order  of  merit  on 
examination,  be  determined,  first,  by  rank  in  service  when  appointed;  second,  by 
former  rank  in  the  Army  or  Marine  Corps ;  third,  by  lot,  among  such  as  have  not 
been  in  the  military  service  of  the  United  States  (Par.  11,  A.  R.,  1895.) 

2  An  officer  of  Engineers  or  Ordnance,  or  of  the  Adjutant-General's,  Inspector- 
General's,  Judge- Advocate-General's,  Quartermaster's,  or  Subsistence  Department, 
or  of  the  Signal  Corps,  though  eligible  to  command,  according  to  his  rank,  shall  not 
assume  command  of  troops  unless  put  on  duty  under  orders  which  specially  so  direct, 
by  authority  of  the  President.     (Par.  17,  A.  R.,  18.) 

3  An  officer  of  the  Pay  or  Medical  Department  can  not  exercise  command,  except 
in  bis  own  department;  but  by  virtue  of  his  commission  he  may  command  all  enlisted 
men  like  other  commissioned  officers.     (Par.  18,  A.  R.,  1895.) 

4  Paragraph  189  of  the  Army  Regulations  of  1895  contains  the  provision  that,  in 
time  of  peace,  army  corps,  divisions,  and  brigades  will  not  be  formed  except  for 
purposes  of  instruction.    Section  9  of  the  act  of  July  17,  1862  (12  Stat.  L.,  594), 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  157 


MILITARY  HEADQUARTERS. 

453.  That  hereafter,  in  time  of  peace,  all  military  head-  uS*r*ry  head* 
quarters,  except  Army  headquarters,  shall  be  established 
and  maintained  at  points  where  the  government  own  build-  15°- 
ings  or  barracks,   within  the  several   departments  and 

authorized  the  President  to  establish  and  organize  army  corps  according  to  his  dis- 
cretion. Section  10  of  the  same  act  provided  for  the  staff  of  an  army  corps.  Such 
legislation  was  not  necessary,  however,  the  organization  of  separate  armies,  army 
corps,  grand  divisions,  wings,  reserves,  and  the  like,  in  time  of  war,  being  a  matter 
within  the  discretion  of  the  President  as.  the  Commander  in  Chief.  For  regulations 
respecting  the  organization  of  armies  in  the  field  in  time  of  war,  see  the  volume 
entitled  TROOPS  w  CAMPAIGN?  see,  also,  Scott's  Dig.,  pp.  244,  245. 

TERRITORIAL  COMMANDS. 

In  time  of  peace  our  Army  has  been  habitually  distributed  into  geographical  com- 
mands, styled,  respectively,  military  divisions,  departments,  and  districts—  the  dis- 
tricts, as  organized  prior  to  1815,  corresponding  to  the  commands  now  designated  as 
departments.  These  divisions  and  departments  can  be  established  only  by  the  Pres- 
ident; but,  within  their  respective  departments,  commanding  generals  have  from 
time  to  time  grouped  adjacent  posts  into  temporary  commands,  which  are  now 
known  as  districts. 

Military  divisions,  each  embracing  two  or  more  departments,  have  obtained  from 
May  17,  1815,  to  June  1,  1821  ;  from  May  19,  1837,  to  July  12,  1842;  from  April  20,  1844, 
to  October  31,  1853  ;  from  July  25  to  August  17,  1861  ;  and  from  October  13,  1863,  to 
July  2,  1891. 

Department  organizations  have  been  continuous  since  1815.     (Scott's  Dig.,  p.  244.) 

THE  COMMANDING  GENERAL  OP  THE  ARMY. 

The  command  exercised  by  the  commanding  general  of  the  Army,  not  having  been 
made  the  subject  of  statutory  regulation,  is  determined  by  the  order  of  assignment. 
It  has  been  habitually  composed  of  the  aggregate  of  the  several  territorial  commands 
that  have  been  or  may  be  created  by  the  President. 

The  military  establishment  is  under  the  orders  of  the  commanding  general  of  the 
Army  in  that  which  pertains  to  its  discipline  and  military  control.  The  fiscal  affairs 
of  the  Army  are  conducted  by  the  Secretary  of  War,  through  the  several  staff  depart- 
ments. (Par  187,  A.  R.,  1895.) 

All  orders  and  instructions  from  the  President  or  Secretary  of  War  relating  to 
military  operations  or  affecting  the  military  control  and  discipline  of  the  Army  will 
be  promulgated  through  the  commanding  general.  (Par.  188,  A.  K.  1895).  See,  also, 
paragraph  11,  ante. 

TERRITORIAL  DEPARTMENTS. 

Territorial  departments  are  established  and  their  commanders  assigned  by  direc- 
tion of  the  President.  In  time  of  peace,  army  corps,  divisions,  or  brigades  will  not 
be  formed  except  for  purposes  of  instruction.  (Par.  189,  A.  R,.,  1895.) 

The  commander  of  a  department  commands  all  the  military  forces  of  the  Govern- 
ment within  its  limits,  whether  of  the  line  or  staff,  which  are  not  specially  excepted 
from  his  control  by  the  War  Department.  The  infantry  and  cavalry  school  at  Fort 
Leaven  worth,  Kans.,  and  the  cavalry  and  light  artillery  school  at  Fort  Klley,  Kans., 
in  matters  pertaining  to  the  courses  of  instruction  ;  the  Military  Academy  ;  the  artil- 
lery school;  the  engineer  establishment  at  Willets  Point;  the  arsenals;  the  general 
depots  of  supply  ;  the  general-service  recruiting  stations  ;  such  permanent  fortifica- 
tions as  may  be  in  process  of  construction  or  repair,  and  officers  employed  on  special 
duty  under  the  Secretary  of  War,  are  exempted  from  the  supervision  of  department 
commanders.  But  when  an  emergency  demands  it,  all  military  men  and  material 
within  the  limits  of  their  jurisdiction  come  under  their  control.  (Par.  190,  A.  R., 
1895.) 

Purchasing  commissaries,  officers  on  duty  at  general  depots  of  supply,  and  others 
indicated  in  the  preceding  paragraph,  whether  reporting  by  letter  to  department 
commanders  or  not,  are  subject  to  their  orders  for  court-martial  or  other  duty  in  an 
emergency  only  ;  and  officers  on  duty  with  the  commands  at  Fort  Leavenworth,  Fort 
Monroe,  and  Fort  Riley  will  not  be  detached  without  the  orders  of  the  Secretary  of 
War  or  the  commanding  general  of  the  Army.  (Par.  191,  A.  R.,  1895.) 

A  department  commander  is  charged  with  the  administration  of  all  the  military 
affairs  of  his  department,  and  theexecution  of  all  orders  from  higher  authority.  He 
will  report  to  the  commanding  general  of  the  Army«all  matters  relating  to  the  gen- 
eral welfare  of  his  command,  including  such  change  of  station  of  troops  as  he  may 
deem  desirable,  but  will  obtain  the  approval  of  the  commanding  general  of  the  Army 
before  ordering  the  movement.  If  it  bo  necessary  to  move  troops  to  meet  emergen- 
cies, such  movements  and  all  the  circumstances  will  be  reported  at  the  earliest 
possible  moment.  (Par.  192,  A.  R.,  1895.) 

Each  department  commander  will  inspect  the  troops  under  his  command  at  least 
once  each  year,  and  for  this  purpose  he  may  be  accompanied  by  one  officer  of  his  per- 
sonal or  the  department  staff.  He  will  assure  himself  by  personal  examination  and 
observation  that  all  officers  and  men  under  his  control  are  efficient  in  the  performance 
of  duty,  that  the  troops  are  thoroughly  drilled  and  instructed  in  their  field  duties 
and  tactical  exercises,  that  supplies  are  properly  distributed,  that  proper  care  is 
exercised  in  the  purchase  and  preservation  of  public  property,  and  that  strict  econ- 
omy is  exercised  hi  all  public  expenditures.  In  his  annual  report  the  results  of  these 


158      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

.  divisions,  and  in  such  buildings  or  barracks,  and  not  other- 
wise, unless  the  Secretary  of  War  shall  by  an  order  in 
writing  otherwise  direct.  Sec.  6,  act  of  June  18,  1878. 

JohstltT.'  iso.  454>  Tliat  section  six  °f  tne  act  approved  June  eighteenth, 
eighteen  hundred  and  seventy-eight,  making  appropria- 
tions for  the  support  of  the  Army,  be,  and  is  hereby, 
repealed :  Provided,  That  when  the  economy  of  the  service 

June  23,  1879  requires,  the  Secretary  of  War  shall  direct  the  establish- 
ment of  military  headquarters  at  points  where  suitable 
buildings  are  owned  by  the  government.  Act  of  June  23 
1879  (21  Stat.  L.,  35}. 

inspections  will  be  summarized.  From  time  to  time  he  will  report,  for  the  informa- 
tion of  the  commanding  general  of  the  Army  and  the  Secretary  of  War,  the  names 
of  any  and  all  officers  belonging  to  his  command  who  are  believed  to  be  incompetent 
or  permanently  unable,  from  any  cause,  to  perform  all  the  duties  of  their  severar 
grades,  both  in" garrison  and  in  active  service;  he  will  also  report  any  errors,  irregul 
larities,  or  abuses  requiring  the  action  of  higher  authority.  (Par.  193.  A.  K.,  1895.) 

Department  commanders  are  expected  to  determine  controversies  arising  within 
the  limits  of  their  jurisdiction  and  decide  questions  referred  to  them  on  appeal. 
(Par.  194,  A.  II.,  1895.) 

Although  a  department  commander  maj-  continue  to  discharge  the  more  important 
functions  of  his  command  while  beyond  its  territorial  limits,  his  absence  therefrom 
requires  the  sanction  of  the  Secretary  of  War,  and  if  intending  to  leave  his  head- 
quarters for  an  absence  within  his  department,  he  will  report  to  the  Adjutant-Gen- 
eral of  the  Army  his  intention,  the  duration  of,  and  his  address  during,  his  proposed 
absence.  (Par.  195,  A.  K.,  1895.) 

STAFF  OF  DEPARTMENT  COMMANDERS. 

The  personal  staff  of  a  department  commander  will  consist  of  the  authorized  aids 
The  department  staff  will  be  limited  to  the  officers  detailed  by  the  Secretary  of  War 
from  appropriate  staff  departments  or  corps,  or  of  officers  of  the  line  detailed  by  the 
same  authority  to  act  in  their  stead,  and  their  official  designations  will  be  as  follows : 
Adjutant-general,  chief  quartermaster,  chief  commissary,  chief  surgeon,  chief  pay- 
master, judge-advocate,  and  artillery  inspector,  the  last  appointed  as  prescribed  in 
paragraph  350;  also,  when  necessary,  an  engineer  officer,  an  ordnance  officer,  and  a 
signal  officer,  each  detailed  from  his  corps ;  hut  when  any  of  these  officers  are  not 
assigned,  or  when  any  department  staff  officer  is  temporarily  absent  or  disabled,  the 


duties  of  his  position  will  be  performed  by  other  members  of  the  department  or  per- 
sonal staff.  The  chief  quartermaster  and  chief  commissary  will  each  have  charge 
of  the  depot  of  his  department,  at  the  place  where  headquarters  are  located,  and 
will,  when  practicable,  make  purchases.  The  chief  surgeon  will,  when  practicable, 
perform  the  duty  of  attending  surgeon.  The  chief  paymaster  will  make  a  proportion 
of  the  payments  in  the  command.  The  duties  prescribed  in  Small  Arms  Firing  lieg- 
ulations  for  th^  inspector  of  small-arms  practice  will  be  performed  by  an  aid  or  by 
the  adjutant-general.  (Par.  196,  A.  R.,  1895.) 


CHAPTER    XIII. 


THE     STAFF     DEPARTMENTS— GENEBAL     PRO- 
VISIONS—DISBURSING  OFFICERS. 


APPOINTMENTS. 


Par. 

461.  Officers  appointed  from  civil 

life   may   waive    board  01 
similar  character. 

462.  Examination  of   certain   of- 

ficers   of    Engineers     and 
Ordnance. 

463.  Transfers  between  line  and 

staff. 

464.  Transfers  of   Engineer    offi- 

cers. 

465.  Successor  to  absent  chief  of 

bureau  to  be  designated  by 
the  President. 


Par. 

455.  Chiefs    of    departments    ap- 

pointed by  selection. 

456.  Vacancies  in  staff,  how  filled. 

457.  Promotions. 

458.  Promotions  to  be  by  senior- 

ity, subject  to  examination. 

459.  Examinations  for  promotion. 

Retirement  on  failure  to 
pass  due  to  physical  disa- 
bility contracted  in  line  of 
duty.  Failure  for  other 
reasons.  Failure  on  re- 
examination. 

460.  Examination  of  officers   ap- 

pointed from  civil  life. 
Composition  of  boards. 
Failure. 


455.  The  Adjutant-General,  the  Quartermaster-General,  aC{^eef*t8of  ade* 
the  Commissary-General  of  Subsistence,  the  Surgeon-Gen-  pointed  by  seiec- 
eral,  the  Chief  of  Engineers,  the  Chief  of  Ordnance,  and  U°Juiy  23,  isw,  c. 
the  Paymaster-General  shall  be  appointed  by  selection  ssel  8' 

from  the  corps  to  which  they  belong.1  sec.  nos,  B.  s. 

456,  Hereafter  all  appointments  to  fill  vacancies  in  the 
lowest  grade  of  the  Adjutant-Generals,  Inspector-Generals, 
Quartermasters  and  Subsistence  Departments  respectively 
shall  be  made  from  the  next  lowest  grade  in  the  line  of  the 
Army.2    Act  of  August  6,  1894  (28  Stat.  Z.,  234). 

1The  act  of  February  5,  1885  (23  Stat.  L.,  297),  provides  that  the  Inspector-General 
shall  be  appointed,  by  selection,  from  the  officers  of  the  Inspector-General's  Depart- 
ment. The  act  of  August  6.  1894  (28  Stat.  L.,  234),  makes  a  similar  provision  in 
respect  to  the  Chief  Signal  Officer. 

2For  statutory  provisions  respecting  appointments  in  the  Medical,  Ordnance,  and 
Signal  Departments  see  the  chapters  so  entitled. 

159 


1894)  v* 


160  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

PROMOTIONS. 

Promotions.        457.  Promotions  in  the  line  shall  be  made  through  the 

Sec.  1204,  R.s.  whole  Army,  in  its  several  lines  of  artillery,  cavalry  and 

infantry,  respectively.    Promotions  in  the  staff  shall  be 

made  in  the  several  departments  and  corps  respectively.1 

EXAMINATIONS  FOR  PROMOTION. 

be^^seniority0     ^^  Hereafter  promotion  to  every  grade  in  the  Army 

nat&ttoexami ~Del°w  the  rank  of  brigadier- general,  throughout  each  arm, 

26°ct562 189°'  v'  corP8?  or  department  of  the  service,  shall,  subject  to  the 

examination  hereafter  provided  for,  be  made  according  to 

seniority  in  the  next  lower  grade  of  that  arm,  corps,  or 

department.     Act  of  October  1, 1890  (26  Stat.  L.,  562).    (See 

Sec.  1204,  R.  S.,  par.  457,  supra.) 

fo?pJS5ofton.ns  459t  Tnat  tne  ^resident  be,  and  he  is  hereby,  authorized 
1890%  26°ct562'  *°  Prescri°e  a  system  of  examination  of  all  officers  of  the 
Army  below  the  rank  of  major  to  determine  their  fitness 
for  promotion,  such  an  examination  to  be  conducted  at 
such  times  anterior  to  the  accruing  of  the  right  to  promo- 
tion as  may  be  best  for  the  interests  of  the  service :  Pro- 
vided, That  the  President  may  waive  the  examination  for 
promotion  to  any  grade  in  the  case  of  any  officer  who  in 
pursuance  of  existing  law  has  passed  a  satisfactory  exami- 
nation for  such  grade  prior  to  the  passage  of  this  act :  And 
provided,  That  if  any  officer  fails  to  pass  a  satisfactory 
examination  and  is  reported  unfit  for  promotion,  the  officer 
next  below  him  in  rank,  having  passed  said  examination, 


fanurlrToenta°ss sna^  receive  the  promotion:  And  provided,  That  should 
due  to  physical  the  officer  fail  in  his  physical  examination  and  be  found 

disability    con-  ;     * 

tracted  in  line  of  incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  line  of  duty  he  shall  be  retired  with  the  rank 

1  See,  also,  section  1  of  the  act  of  October  1, 1890  (26  Stat.  L.,  252) .  So  much  of  section 
1194,  Revised  Statutes,  as  prohibited  appointments  and  promotions  in  the  Adjutant- 
General's,  Inspector-General's,  Pay,  Quartermaster's,  Subsistence,  Ordnance,  and 
Medical  Departments,  was  repealed;  as  to  the  Adjutant-General's  Department, 
by  the  act  of  March  3,  1875  (18  Stat.  L.,  478) ;  as  to  the  Inspector- General's  Depart 
ment,  by  the  act  of  June  23,  1874  (18  Stat.  L.,  244) ;  as  to  the  grade  of  major  in  the 
Pay  Department,  by  the  act  of  March  3, 1875  (18  Stat.  L.,  524),  and  the  act  of  March  3, 
1877  (19  Stat.  L.,  270) ;  as  to  the  Quartermaster's  Department,  by, the  act  of  March  3, 
1875  (18  Stat.  L.,  338) ;  as  to  the  Ordnance,  Subsistence,  and  Medical  Departments,  by 
section  8  of  the  act  of  June  23, 1874  (18  Stat.  L.,  245).  The  act  of  March  3,  1877  (19 
Stat.  L.,  270),  declared  that  this  section  "now  applying  only  to  the  grades  in  the  Pay 
Department  of  the  Army  above  the  rank  of  major  is  hereby  repealed"  (19  Stat. 
L-,  270). 

The  act  of  June  23,  1874,  contained  the  provision  that  as  vacancies  shall  occur  in 
any  of  the  grades  of  the  Ordnance  and  Medical  Departments,  no  appointments  shall 
be  made  to  fill  the  same  until  the  numbers  in  such  grade  shall  be  reduced  to  the 
numbers  which  are  fixed  for  permanent  appointments  L>y  the  provisions  of  this  act; 
and  thereafter  the  number  of  permanent  oflicers  in  said  grades  shall  continue  to  con- 
form to  said  reduced  numbers,  and  all  other  grades  in  said  Ordnance  and  Medical 
Departments  than  those  authorized  by  the  provisions  of  this  act  shall  cease  to  exist 
as  soon  as  the  same  shall  become  vacant  by  death,  resignation,  or  otherwise;  and  no 
appointment  or  promotion  shall  hereafter  be  made  to  fill  any  vacancy  which  may 
occur  therein. 

The  same  statute  also  provided  that  no  officer  now  in  the  service  shall  be  reduced 
in  rank  or  musj^red  out  by  reason  of  any  provision  of  law  herein  made  reducing  the 
number  of  officers  in  any  department  or  corps  of  the  staff. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  161 

to  which  his  seniority  entitled  him  to  be  promoted;  but  if 

he  should  fail  for  any  other  reason  he  shall  be  suspended    Failure    for 

other  reasons. 

from  promotion  for  one  year,  when  he  shall  be  reexammed, 

and  in  case  of  failure  on  such  reexamination  he  shall  be    Failure  on  re- 

examination. 
honorably  discharged  with  one  year's  pay  from  the  Army. 

460.  That  the  examination  of  officers  appointed  in  the    Examination 
Army  from  civil  life,  or  of  officers  who  were  officers  of  pointed    from 


volunteers  only,   or   were  officers  of  the  militia  of  the 

several  States  called  into  the  service  of  the  United  States, 

or  were  enlisted  men  in  the  regular  or  volunteer  service, 

either  in  the  Army,  Navy,  or  Marine  Corps,  during  the 

war  of  the  rebellion,  shall  be  conducted  by  boards  com-  Composition  of 

posed  entirely  of  officers  who  were  appointed  from  civil  life 

or  of  officers  who  were  officers  of  volunteers  only  during 

said  war,  and  such  examination  shall  relate  to  fitness  for 

practical  service  and  not  to  technical  and  scientific  knowl- 

edge; and  in  case  of  failure  of  any  such  officer  in  the  reex-    Failure. 

animation  hereinbefore  provided  for,  he  shall  be  placed  upon 

the  retired  list  of  the  Army;  and  no  act  now  in  force  shall 

be  so  construed  as  to  limit  or  restrict  the  retirement  of  offi- 

cers as  herein  provided  for.     Sec.  3,  act  of  October  1,  1890 

(26  Stat.  L.,  562}. 

461.  That  officers  entitled  by  this  section  to  examina-    officers  ap- 
tion  by  a  board  composed  entirely  of  officers  who  were  civil   life   may 
appointed  from  civil  life,  or  who  were  officers  of  volunteers  similar  °charac- 
only  during  the  war,  may,  by  written  waiver  filed  with  thetejuiy27,i892,v. 
War  Department,  relinquish  such  right,  in  which  case  the27'p'276' 
examination  of  such  officers  shall  be  conducted  by  boards 
composed  as  shall  be  directed  by  the  Secretary  of  War. 

Act  of  July  27,  1892  (27  Stat.  L.,  276}. 

462.  That  the  examination  of  officers  of  the  Corps  of  Examination 

of  certain  officers 

Engineers  and  Ordnance  Department,  who  were  officers  or  of  Engineers  and 

,?  .     ,  .  Ordnance. 

enlisted  men  in  the  regular  or  volunteer  service,  either    sec.  2,  July  27, 

XT  TIT         •  /-I  J  •  1892'  V'  27'  P-  276' 

in  the  Army,  Navy,  or  the  Marine  Corps,  during  the  war 
of  the  rebellion,  shall  be  conducted  by  boards  composed  in 
the  same  manner  as  for  the  examination  of  other  officers 
of  their  respective  corps  or  department;  and  the  examina- 
tions shall  embrace  the  same  subjects  prescribed  for  all 
other  officers  of  similar  grades  in  the  Corps  of  Engineers 
and  Ordnance  Department,  respectively.  Sec.  2,  act  of 
July  27,  1892  (27  Stat.  L.,  276}. 


TRANSFERS   TO   THE  STAFF. 

463.  Officers  may  be  transferred  from  the  line  to  the    Transfers   be- 

tween    line    and 

Stan  ot  the  Army  without  prejudice  to  their  rank  or  pro-  staff. 
motion  in  the  line;  but  no  officer  shan  hold,  at  the  same    sec.i205,R.s. 
1919 11 


162 


THE    MILITARY    LAWS   OF   THE    UNITED    STATES. 


time,  an  appointment  in  the  line  and  an  appointment  in 
the  staff  which  confer  equal  rank  in  the  Army.  When 
any  officer  so  transferred  has,  in  virtue  of  seniority,  ob- 
tained, or  become  entitled  to,  a  grade  in  his  regiment 
equal  to  the  grade  of  his  commission  in  the  staff,  he  shall 
vacate  either  his  commission  in  the  line  or  his  commission 
in  the  staff. 

^^*  Engineers  shall  not  assume  nor  be  ordered  on  any 
ii58  B  s  ^uty  beyond  the  line  of  their  immediate  profession,  except 
*  by  the  special  order  of  the  President.    They  may,  at  the 
discretion  of  the  President,  be  transferred  from  one  corps 
to  another,  regard  being  paid  to  rank. 


enneer  officer? 


MISCELLANEOUS. 

Successor    to     465.  During  the  absence  of  the  Quartermaster-General, 

absent   chief    of 

bureau  to  be  des-  Or  the  chief  of  any  military  bureau  of  the  War  Depart- 

ienated    by   the 

President.         ment,  the  President  is  authorized  to  empower  some  officer 

of  the  Department  or  Corps  whose  chief  is  absent  to  take 

'  charge  thereof,  and  to  perform  the  duties  of  Quarter- 

master-General, or  chief  of  the  department  or  corps,  as 

the  case  may  be,  during  such  absence. 


DISBURSING   OFFICERS. 


Par. 

466.  Bonds  of  disbursing  officers ; 

by  whom  to  be  given. 

467.  Security  companies  as  sure- 

ties. 

468.  Agents  to  be  appointed    in 

judicial  district  where 
surety  is  undertaken. 

469.  Copy  of  charter  to  be  filed 

with  Attorney-General. 

470.  Attorney-General    to    grant 

authority  to  act. 

471.  Quarterly  reports.     Supervi- 

sory powers  of  Attorney- 
General. 

472.  Jurisdiction  of  United  States 

courts. 

473.  Forfeiture  of  rights  on  fail- 

ure to  pay  judgments. 

474.  Companies    estopped    from 

denying  power. 

475.  Penalty  for  failure  to  comply 

with  provisions  of  statute. 

476.  Sureties    on    official    bonds. 

Notice  of  principals'  defi- 
ciency to  be  communicated 
to  sureties. 


Par. 

477.  Sureties  released    after  five 

years  without  suit. 

478.  Inspection  of  disbursements. 

479.  To  be  reported  to  Congress. 

480.  Drafts   for  War    and    Navy 

Departments. 

481.  Advances   of   public    money 

prohibited. 

482.  Exchange  of  funds  restricted. 

483.  Premium  on  sales  of  public 

funds  to  be  accounted  for. 

484.  Penalty  for  failure  to  deposit 

money. 

485.  Duties  of  officers  as  custodi- 

ans of  public  moneys. 

486.  Duties  of  disbursing  officers. 

487.  Entry  of  each  deposit,  trans- 

fer, and  payment. 

488.  Application   of   moneys    ap- 

propriated. 

489.  No  expenditures  beyond  ap- 

propriations. 

490.  Proceeds  of  sales  to  be  de- 

posited without  deduction. 

491.  Proceeds  of  sales  of  old  mate- 

rials. 


THE    MILITARY    LAWS   OF   THE    UNITED    STATES. 


163 


Par. 

492.  Appropriations    for    subsist- 

ence available  for  purchases 
of  stores  for  sale  to  officers, 
etc.  Proceeds  of  sales 
available  for  similar  pur- 
chases. 

493.  Sales  of   unserviceable  ord- 

nance. 

494.  Sales  of    useless    ordnance; 

proceeds  available  for  pur- 
chases of  new  material. 

495.  Accounts. 

496.  Distinct    accounts    required 

under  separate  heads  of 
appropriation. 

497.  Suits  to  recover  money. 

498.  Penalty    for    receipting    for 

larger  sums  than  are  paid. 

499.  Disbursing  officer  unlawfully 

depositing,  conve  r  t  i  n  g , 
loaning,  or  transferring 
public  money. 

500.  Failure  of  Treasurer,  etc.,  to 

safely  keep  public  moneys. 


Par. 

501.  Custodians  of  public  money 

failing  to  safely  keep,  with- 
out loaning,  etc. 

502.  Failure  of   officer  to  render 

accounts. 

503.  Failure  to  deposit  as  required. 

504.  Provisions  of  five  preceding 

sections  construed. 

505.  Record  evidence  of  embezzle- 

ment. 

506.  Refusal  to  pay  draft  prima  iacie 

evidence  of  embezzlement. 

507.  Evidence  of  conversion. 

508.  Unlawful  receiving  of  money 

by  banker,  etc.,  to  be  em- 
bezzlement. 

509.  Officers,    etc.,    interested    in 

claims. 

510.  United  States  officer  accept- 

ing bribes,  etc. 

511.  Forfeiture  of  office. 

512.  Officer    contracting    beyond 

specific  appropriation. 

513.  Fraudulent     notes     to     be 

stamped  "  counterfeit." 


BONDS. 

466.  All  officers  of  the  Quartermaster's,  Subsistence,  and  bu^fndg8  ^ 
Pay  Departments,  the  chief  medical  purveyor  and  assist- 
ant  medical  purveyors,  and  all  store-keepers  shall,  before 
entering  upon  the  duties  of  their  respective  offices,  gi 
good  and  sufficient  bonds  to  the  United  States,  in  such  ^          1 
sums  as  the  Secretary  of  War  may  direct,  faithfully  to  isef's.  2,  v.  5,'  p! 

,    „  ..  ...  ,  '.    ,     ,,  512;  July  28,  1866, 

account  for  all  public  moneys  and  property  which  they  may  c.  200,  •.IT,  v.  u, 


receive.  The  President  may,  at  any  time,  increase 
sums  so  prescribed.1  But  the  Quartermaster-General  shall  w 
not  be  liable  for  any  money  or  property  that  may  come  into  J^i's???  v°;i9,ep! 
the  hands  of  the  subordinate  officers  of  his  department.  24|'eC.ii9i,R.s. 
467.  That  whenever  any  recognizance,  stipulation,  bond,  security  com- 

'  panies    as   sure- 

or  undertaking  conditioned  for  the  faithful  performance  of  ties. 

-      .     .  ,     .  ,  ,   .  Aug.  13,  1894,  v. 

any  duty,  or  for  doing  or  refraining  from  doing  any  thing  28,  p.  279. 
in  such  recognizance,  stipulation,  bond,  or  undertaking 
specified,  is  by  the  laws  of  the  United  States  required  or 

1  For  statxitory  requirements  respecting  bonds  and  sureties,  in  addition  to  those 
cited  in  this  chapter,  see  the  chapters  entitled  THE  TREASURY  DEPARTMENT, 
THE  COURT  OF  CLAIMS,  THE  QUARTERMASTER'S  DEPARTMENT,  THE  SUBSISTENCE 
DEPARTMENT,  THE  PAY  DEPARTMENT,  THE  MEDICAL  DEPARTMENT,  and  CONTRACTS 
AND  PURCHASES.  Officers  of  the  Army  and  Navy  are  excepted  from  the"  provisions 
of  section  3614,  Revised  Statutes,  which  require  all  special  agents  employed  by  the 
heads  of  the  several  Executive  Departments  in  the  disbursement  of  the  public 
moneys  to  give  bonds  in  such  form  and  with  such  security  as  such  heads  of  Depart- 
ments may  approve.  This  section  does  not  apply  to  all  commissioned  officers  of 
the  Army  who  may  be  required  to  act  as  disbursing  officers,  but  to  such  only  as  are 
regularly  appointed  disbursing  officers  and  who  are  required,  as  such,  to  give  bonds. 
Ex  parte  Randolph,  2  Brockenbrough,  447.  See  also  U.  S.  v.  Kirkpatrick.  9  Wh.,  720  ; 
U.  S.  v.  Van  Zandt,  llWh.,184;  Doxu.  Postuiaster-General,  lPet.,325;  U.S.v.Linn, 
15  Pet.,  290,  See,  also,  Par,  515  post. 


164  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

permitted  to  be  given  with  one  surety  or  with  two  or  more 
sureties,  the  execution  of  the  same  or  the  guaranteeing  of 
the  performance  of  the  condition  thereof  shall  be  sufficient 
when  executed  or  guaranteed  solely  by  a  corporation  incor- 
porated under  the  laws  of  the  United  States  or  of  any 
State  having  power  to  guarantee  the  fidelity  of  persons 
holding  positions  of  public  or  private  trust,  and  to  execute 
and  guarantee  bonds  and  undertakings  in  judicial  pro- 
ceedings: Provided,  That  such  recognizance,  stipulation, 
bond,  or  undertaking  be  approved  by  the  head  of  depart- 
ment, court,  judge,  officer,  board,  or  body  executive,  legis- 
lative, or  judicial  required  to  approve  or  accept  the  same. 
But  no  officer  or  person  having  the  approval  of  any  bond 
shall  exact  that  it  shall  be  furnished  by  a  guarantee  com- 
pany or  by  any  particular  guarantee  company.  Act  of 
August  13,  1894  (28  Stat.  L.,  279}. 

in  ju6  ^68.  That  no  such  company  shall  do  business  under  the 
Provisions  of  tn*s  act  beyoncl  tne  limits  of  the  State  or  Ter- 
ritory  under  whose  laws  it  was  incorporated  and  in  which 
its  principal  office  is  located  nor  beyond  the  limits  of  the 
District  of  Columbia,  when  such  company  was  incorporated 
under  its  laws  or  the  laws  of  the  United  States  and  its 
principal  office  is  located  in  said  District,  until  it  shall  by 
a  written  power  of  attorney  appoint  some  person  residiog 
within  the  jurisdiction  of  the  court  for  the  judicial  district 
wherein  such  suretyship  is  to  be  undertaken,  who  shall  be 
a  citizen  of  the  State,  Territory,  or  District  of  Columbia, 
wherein  such  court  is  held,  as  its  agent,  upon  whom  may 
be  served  all  lawful  process  against  such  company,  and 
who  shall  be  authorized  to  enter  an  appearance  in  its  behalf. 
A  copy  of  such  power  of  attorney,  duly  certified  and  authen- 
ticated, shajl  be  filed  with  the  clerk  of  the  district  court  of 
the  United  States  for  such  district  at  each  place  where  a 
term  of  such  court  is  or  may  be  held,  which  copy,  or  a  cer- 
tified copy  thereof,  shall  be  legal  evidence  in  all  controver- 
sies arising  under  this  act.  If  any  such  agent  shall  be 
removed,  resign,  or  die,  become  insane,  or  otherwise  inca- 
pable of  acting,  it  shall  be  the  duty  of  such  company  to 
appoint  another  agent  in  his  place,  as  hereinbefore  pre- 
scribed, and  until  such  appointment  shall  have  been  made, 
or  during  the  absence  of  any  agent  of  such  company  from 
such  district,  service  of  process  may  be  upon  the  clerk  of 
the  court  wherein  such  suit  is  brought,  with  like  effect  as 
upon  an  agent  appointed  by  the  company.  The  officer 
executing  such  process  upon  such  clerk  shall  immediately 
transmit  a  copy  thereof  by  mail  to  the  company,  and  state 
such  fact  in  his  return.  A  judgment,  decree,  or  order  of  a 
court  entered  or  made  after  service  of  process  as  aforesaid 


THE   MILITARY   LAWS   OP  THE   UNITED   STATES.  165 

shall  be  as  valid  and  binding  on  such  company  as  if  served 
with  process  in  said  district.     Sec.  2,  ibid. 

469.  That  every  company  before  transacting  any  business  tej?0py  ^  cjjj[ 
under  this  act  shall  deposit  with  the  Attorney-General  of  g^^f  ttorney' 
the  United  States  a  copy  of  its  charter  or  articles  of  incor-    sec.  3,  ibid. 
poration,  and  a  statement  signed  and  sworn  to  by  its  presi- 

dent and  secretary  showing  its  assets  and  liabilities.     Sec.3, 
ibid. 

470.  If  the  said  Attorney-  General  shall  be  satisfied 
such  company  has  authority  under  its  charter  to  do 
business  provided  for  in  this  act,  and  that  it  has  a  paid  up 
capital  of  not  less  than  two  hundred  and  fifty  thousand 
dollars,  in  cash  or  its  equivalent,  and  is  able  to  keep  and 
perform  its  contracts,  he  shall  grant  authority  in  writing  to 
such  company  to  do  business  under  this  act.     Sec.  3,  ibid. 

471.  That  every  such  company  shall,  in  the  months  of  0^"8artegJ  ™~ 
January,  April,  July,  and  October  of  each  year,  file  with  visory  powers  of 

,.  .  T     .  ,?  ,  .  ,          ,  Attorney-Gen- 

the  said  Attorney-General  a  statement,  signed  and  sworn  erai. 

to  by  its  president  and  secretary,  showing  its  assets  and    l>ec-  4-  *6*d- 

liabilities,  as  is  required  by  section  three  of  this  act.   And 

the  said  Attorney-  General  shall  have  the  power,  and  it 

shall  be  his  duty,  to  revoke  the  authority  of  any  such  com- 

pany to  transact  any  new  business  under  this  act  whenever 

in  his  judgment  such  company  is  not  solvent  or  is  conduct- 

ing its  business  in  violation  of  this  act.     He  may  institute 

inquiry  at  any  time  into  the  solvency  of  said  company  and 

may  require  that  additional  security  be  given  at  any  time 

by  any  principal  when  he  deems  such  company  no  longer 

sufficient  security.    Sec.  4^  ibid. 

472.  That  any  surety  company  doing  business  under  the    Jf^  t  e°s 


provisions  of  this  act  may  be  sued  in  respect  thereof  in  courts 
any  court  of  the  United  States  which  has  now  or  hereafter 
may  have  jurisdiction  of  actions  or  suits  upon  such  recog- 
nizance, stipulation,  bond,  or  undertaking  in  the  district  in 
which  such  recognizance,  stipulation,  bond,  or  undertaking 
was  made  or  guaranteed,  or  in  the  district  in  which  the 
principal  office  of  such  company  is  located.  And  for  the 
purposes  of  this  act  such  recognizance,  stipulation,  bond, 
or  undertaking  shall  be  treated  as  made  or  guaranteed  in 
the  district  in  which  the  office  is  located,  to  which  it  is 
returnable,  or  in  which  it  is  filed,  or  in  the  district  in  which 
the  principal  in  such  recognizance,  stipulation,  bond,  or 
undertaking  resided  when  it  was  made  or  guaranteed. 
Sec.  5,  ibid. 

473.  That  if  any  such  company  shall  neglect  or  refuse  to 
pay  any  final  judgment  or  decree  rendered  against  it  upon  to'  pay 
any  such  recognizance,  stipulation,  bond,  or  under  takingm|ec. 
made  or  guaranteed  by  it  under  the  provisions  of  this  act, 


166     THE  MILITARY  LAWS  OP  THE  UNITED  STATES. 

from  which  no  appeal,  writ  of  error,  or  supersedeas  has 
been  taken,  for  thirty  days  after  the  rendition  of  such 
judgment  or  decree,  it  shall  forfeit  all  right  to  do  business 
under  this  act.  Sec.  6,  ibid. 

toC°edpfrom  de-  ^^'  That  any  company  which  shall  execute  or  guarantee 
n^g  power,  any  recognizance,  stipulation,  bond,  or  undertaking  under 
the  provisions  of  this  act  shall  be  estopped  in  any  pro- 
ceeding to  enforce  the  liability  which  it  shall  have  assumed 
to  incur,  to  deny  its  corporate  power  to  execute  or  guarantee 
such  instrument  or  assume  such  liability.  Sec.  7,  ibid. 

penalty  for     475.  That  any  company  doing  business  under  the  pro- 
failure   to  com-     .   .  .  \      J  ° 

piy  with  provi-  visions  of  this  act  which  shall  fail  to  comply  with  any  ot 
Sea8,<Wd.  its  provisions  shall  forfeit  to  the  United  States  for  every 
such  failure  not  less  than  five  hundred  dollars  nor  more 
than  five  thousand  dollars,  to  be  recovered  by  suit  in  the 
name  of  the  United  States  in  the  same  courts  in  which  suit 
may  be  brought  against  such  company  under  the  provisions 
of  this  act,  and  such  failure  shall  not  affect  the  validity  of 
any  contract  entered  into  by  such  company.  Sec.  <S,  ibid. 

ciaiubonds  °n°ffi  ^®-  That  hereafter,  whenever  any  deficiency  shall  be  dis- 
.  Notice  of  prin-  covered  in  the  accounts  of  any  official  of  the  United  States, 

cipal  s  deficiency  » 

to  be  commum-  or  of  any  officer  disbursing  or  chargeable  with  public  money, 

cated  to  sureties,  r,-    •-«*,.,      *w    .          ,,  ,,  , .  /¥>  ,.  , 

Aug.  s,  1888,  v.  it  shall  be  the  duty  of  the  accounting  officers  making  such 
25,  p.  287.  discovery  to  at  once  notify  the  head  of  the  Department 
having  control  over  the  affairs  of  said  officer  of  the  nature 
and  amount  of  said  deficiency,  and  it  shall  be  the  imme- 
diate duty  of  said  head  of  Department  to  at  once  notify  all 
obligors  upon  the  bond  or  bonds  of  such  official  of  the  na- 
ture of  such  deficiency  and  the  amount  thereof.  Said  noti- 
fication shall  be  deemed  sufficient  if  mailed  at  the  post- 
office  in  the  city  of  Washington,  District  of  Columbia,  ad- 
dressed to  said  sureties  respectively,  and  directed  to  the 
respective  post-offices  where  said  obligors  may  reside,  if 
known;  but  a  failure  to  give  or  mail  such  notice  shall  not 
discharge  the  surety  or  sureties  upon  such  bond.1  Act  of 
Augusts,  1888  (25  Stat.  L.,  387}. 

leied^fter  fiVe"     477<  That  if>  uPon  the  statement  of  the  account  of  any 
years  withoutofficial  of  the  United  States,  or  of  any  officer  disbursing  or 
sec.  2,  ibid,     chargeable  with  public  money,  by  the  accounting  officers 
of  the  Treasury,  it  shall  thereby  appear  that  he  is  indebted 
to  the  United  States,  and  suit  therefor  shall  not  be  insti- 
tuted within  five  years  after  such  statement  of  said  ac- 
count, the  sureties  on  his  bond  shall  not  be  liable  for  such 
indebtedness.2     Sec.  2,  ibid. 

1  The  regulations  of  the  Treasury  Department  are  imperative,  and  expressly  pro- 
hibit the  transfer  of  funds,  of  any  character,  for  which  an  officer  is  accountable,  from 
one  bond  to  another,  and  when  this  regulation  is  violated  it  becomes  necessary  for 
the  officer  to  deposit  the  sum  transferred,  as  a  credit  to  his  .irst  bond,  or  else  procure 
the  admission  of  the  sureties  on  the  second  bond  that  the  officer  actually  had  the 
sum  in  hand  when  it  was  executed,  and  that  they  are  liable  on  said  bond  for  the  same. 
(3  Dig.  Compt.  Dec.,  13.) 

2  For  statutory  provisions  respecting  distress  warrants,  see  the  chapter  entitled 
THE  TREASURY  DEPARTMENT. 


THE   MILITARY    LAWS    OF   THE    UNITED    STATES.  167 

INSPECTION   OF  DISBURSEMENTS. 

478.  It  shall  be  the  duty  of  the  Secretary  of  War  todigbu?8em!nt8°f 
cause  frequent  inquiries  to  be  made  as  to  the  necessity,    Apr.  20,  1874, 
economy,  and  propriety  of  all  disbursements  made  by  dis- v 

bur  sing  officers  of  the  Army,  and  as  to  their  strict  con- 
formity to  the  law  appropriating  the  money;  also  to  ascer- 
tain whether  the  disbursing  officers  of  the  Army  comply 
with  the  law  in  keeping  their  accounts  and  making  their 
deposits;  such  inquiries  to  be  made  by  officers  of  the  in- 
spection department  of  the  Army,  or  others  detailed  for  that 
purpose:  Provided,  That  no  officer  so  detailed  shall  be  in 
any  way  connected  with  the  department  or  corps  making 
the  disbursement.1  Act  of  April  20, 1874,  (18  Stat.  L.,  33). 

479.  That  the  reports  of  such  inspections  shall  be  made    TO  be  reported 
out  and  forwarded  to  Congress  with  the  annual  report  of 

the  Secretary  of  War.     Sec.  2,  ibid. 

RECEIPTS,    DEPOSITS,    AND   DISBURSEMENTS. 

480.  All  moneys  appropriated  for  the  use  of  the  War  and 
Navy  Departments  shall  be  drawn  from  the  Treasury,  by 

M«U'.  o,  1817,  V. 

warrants  of  the  Secretary  of  the  Treasury,  upon  the  requi-  3,  P.  367 ;  May  7, 
sitions  of  the  Secretaries  of  those  Departments  respec-Mar.4,'i874\'v.i8,' 
tively,  countersigned  by  the  Comptroller  of  the  Treasury,1*'19' 
and  registered  by  the  proper  Auditor.  sec.3673,R.s. 

481.  No  advance  of  public  money  shall  be  made  in  any    Advances    of 
case  whatever.     And  in  all  cases  of  contracts  for  the  per- prohibited?.  °ney 
formance  of  any  service,  or  the  delivery  of  articles  of  anys^^31'1823'^ 
description,  for  the  use  of  the  United  States,  payment   sec.  3648,  B.  s. 
shall  not  exceed  the  value  of  the  service  rendered,  or  of 

the  articles  delivered  previously  to  such  payment.2  It 
shall,  however,  be  lawful,  under  the  special  direction  of  the 
President,  to  make  such  advances  to  the  disbursing  officers 
of  the  Government  as  may  be  necessary  to  the  faithful  and 
prompt  discharge  of  their  respective  duties,  and  to  the 
fulfillment  of  the  public  engagements.  The  President  may 
also  direct  such  advances  as  he  may  deem  necessary  and 
proper  to  persons  in  the  military  and  naval  service  em- 
ployed on  distant  stations,  where  the  discharge  of  the  pay 
and  emoluments  to  which  they  are  entitled  cannot  be  reg- 
ularly effected. 

482.  No  exchange  of  funds  shall  be  made  by  any  dis- .  Exchange    of 

J          J  funds  restricted. 

bursing  officer  or  agent  of  the  Government,  of  any  grade    Aug.  e,  1846,  c. 

J    *          _  90,  s.  20,  v.  9,  p.  61; 

1  See  paragraph  871,  A.  R.,  1895.  Feb.  22> 1862. c-33- 

2  In  the  case  of  disbursing  officers  the  policy  of  the  Government  has  been  to  s-  t|V'ii    'I?A«> 
acknowledge  no  payments  as  made  on  its  behalf  save  those  which  are  authorized  by  ""fy  **'  18!?£' 
law.    If  an  officer  makes  a  mistake  of  law  the  payment  is  disallowed  when  his  1~»  ^-l'  v'    1(JR9* 
accounts  come  in  for  settlement,  and  charged  to  him  as  if  the  money  were  still  in  532!  •"•f«  <>.  l»b<>, 
his  namls.    McKim  v.  U.  S.,  12  C.  Cls.  It.,  504,  532.    Such  officers  are  special  agents  c.  73,  «.  3,  v.  12,  p. 
with  very  limited  authority.    Their  duties  are  ministerial;  they  are  to  pay  the     Vfo       «HL      it 
money  according  to  the  law  and  the  facts  in  each  case,  and  if  they  make  mistakes  in  c-  ™°»  8-  Jd« v>  ld» 
either  they  are  personally  liable  themselves,  and  the  Government  may,  also,  without  P- 1UO- 

doubt,  maintain  an  action  to  recover  back  the  money  from  the  person  wrongfully     „       Q«-I    i>  c 
receiving  it.    No  discretion  or  authority  to  decide  controverted  questions  of  law  is     sec'  *ool»  •• 8* 
intrusted  to  such  officers.    See  dissenting  opinion  of  Richardson,  J.,  in  McKee  v. 
U.  S.,  12  C.  Cls.  R.,  504,  551. 


168      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

or  denomination  whatsoever,  or  connected  with  any  branch 
of  the  public  service,  other  than  an  exchange  for  gold,  sil- 
ver, United  States  notes,  and  national-bank  notes;  and 
every  such  disbursing  officer,  when  the  means  for  his  dis- 
bursements are  furnished  to  him  in  gold,  silver,  United 
States  notes,  or  national-bank  notes,  shall  make  his  pay- 
ments in  the  money  so  furnished;  or  when  they  are  fur- 
nished to  him  in  drafts,  shall  cause  those  drafts  to  be 
presented  at  their  place  of  payment,  and  properly  paid 
according  to  law,  and  shall  make  his  payments  in  the 
money  so  received  for  the  drafts  furnished,  unless,  in  either 
case,  he  can  exchange  the  means  in  his  hands  for  gold  and 
silver  at  par.  And  it  shall  be  the  duty  of  the  head  of 
the  proper  Department  immediately  to  suspend  from  duty 
any  disbursing  officer  or  agent  who  violates  the  provi- 
sions of  this  section,  and  forthwith  to  report  the  name 
of  the  officer  or  agent  to  the  President,  with  the  fact  of 
the  violation,  and  all  the  circumstances  accompanying  the 
same,  and  within  the  knowledge  of  the  Secretary,  to  the 
end  that  such  officer  or  agent  may  be  promptly  removed 
from  office  or  restored  to  his  trust  and  the  performance  of 
his  duties,  as  the  President  may  deem  just  and  proper.1 
Premium  on  483.  No  officer  of  the  United  States  shall,  either  directly 

sales    of    public          . 

moneys  to  be  ac- or  indirectly,  sell  or  dispose  of  to  any  person,  for  a  pre- 

counted^or.^  ^  miuin?  anv  Treasury  note,  draft,  warrant,  or  other  public 

90>8>21'v'9'p'65' security,  not  his  private  property,  or  sell  or  dispose  of  the 

Sec.  3652, B.S.  avails  or  proceeds  of  such  note,  draft,  warrant,  or  security, 

in  his  hands  for  disbursement,  without  making  return  of 

such  premium,  and  accounting  therefor  by  charging  the 

same  in  his  accounts  to  the  credit  of  the  United  States; 

and  any  officer  violating  this  section  shall  be  forthwith 

dismissed  from  office. 

uSnto^e0pof8?t     484>  Everv  person  who  shall  have  moneys  of  the  United 

mMar 's  1857  c  States  *n  n*s  nan(ls  or  possession  and  disbursing  officers 

in,  s.'s.V.  11,' P!  having  moneys  in  their  possession  not  required  for  current 

i896,v.29,pai79.'  expenditure,  shall  pay  the  same  to  the  Treasurer,  anassist- 

5ec*3621'R's*  ant  treasurer,  or  some  public  depositary  of  the  United 

States,  without  delay,  and  in  all  cases  within  thirty  days  of 

their  receipt.     And  the  Treasurer,  the  Assistant  Treasurer, 

or  the  public  depositary  shall  issue  duplicate  receipts  for  the 

moneys  so  paid,  transmitting,  forthwith,  the  original  to  the 

Secretary  of  the  Treasury,  and  delivering  the  duplicate  to  the 

depositor.2     Sec.  5,  act  of  May  28, 1896  (29  Stat.  L.,  179). 

1 U.  S.  v.  City  Bank,  6  McLean,  130. 

2  DISBURSING  OFFICERS. 

When  an  officer  disburses  money  in  different  capacities,  his  deposits  and  accounts 
will  be  kept  distinct,  according  to  the  bureaus  to  which  they  pertain.  (Par.  583, 
A.  R.,  1895.) 

Public  moneys  subject  to  disbursement  coming  into  the  hands  of  an  officer  from 
any  source  must  be  promptly  placed  by  him  to  his  credit  with  the  Treasurer  or  an  as- 
sistant treasurer  of  the  United  States,  or  a  duly  designated  depositary,  or  transferred 
to  a  disbursing  officer  of  that  branch  of  the  public  service  to  which  the  money  per- 
tains; in  either  of  which  cases  a  receipt  will  be  obtained.  Exceptions  to  this  rule 


THE   MILITARY   LAWS   OF    THE    UNITED    STATES.  169 


485.  The  Treasurer  of  the  United  States,  all  assistant  Ce^ 
treasurers,  and  those  performing  the  duties  of  assistant  dians  of  public 
treasurer    *     *     *     and  all  public  officers  of  whatsoever  m  Auf.'V  1846,  c. 

-,  -,  /.  i  •.-,          ,     i  90,  8.6,  v,  9,  p.  60; 

character,  are  required  to  keep  safely,  without  loaning,  juiy  3,1852,0.54, 
using,  depositing  in  banks,  or  exchanging  for  other  funds  Mar.  VissVc! 
than  as  specially  allowed  by  law,  all  the  public  money  col-  Jig.  Apr.ViJt 
lected  by  them,  or  otherwise  at  any  time  placed  in  their  pos-  Jgl^  £j'rV3  lf^' 
session  and  custody,  till  the  same  is  ordered,  by  the  proper  e.  96,  *&'*•*£> 
Department  or  officer  of  the  Government,  to  be  transferred  c.  2*4,  a"  5%'  13,  p'. 
or  paid  out;  and  when  such  orders  for  transfer  or  payment  SS?3^?4,v.8'i5^'. 
are  received,  faithfully  and  promptly  to  make  the  same  as  271< 
directed,  and  to  do  and  perform  all  other  duties  as  fiscal  Sec-  3639'  R<  s* 
agents  of  the  Government  which  may  be  imposed  by  any 
law,  or  by  any  regulation  of  the  Treasury  Department  made 
in  conformity  to  law.    The  President  is  authorized,  if  in  his 
opinion  the  interest  of  the  United  States  requires  the  same, 
to  regulate  and  increase  the  sums  for  which  bonds  are,  or 
may  be,  required  by  law,  of  all  district  attorneys,  collectors 
of  customs,  naval  officers,  and  surveyors  of  customs,  navy 
agents,  receivers  and  registers  of  public  lands,  paymasters 
in  the  Army,  commissary  -general,  and  by  all  other  officers 
employed  in  the  disbursement  of  the  public  moneys,  under 
the  direction  of  the  War  or  Navy  Departments.     (See  sees. 
5489-5497,  R.  S.) 

486.  It  shall  be  the  duty  of  every  disbursing  officer  hav-    Duties  of  dis- 

,,.  .,  Liji-^-i-i  A    burning  officers. 

mg  any  public  money  intrusted  to  him  tor  disbursement,    Juneu,i866,c. 
to  deposit  the  same  with  the  Treasurer  or  some  one  of  the  J^'  Feb.'  IV^is??' 

-  c.  69,  v.  19,  p.  249. 

are  allowed  where  a  disbursing  officer  has  been  specially  authorized  by  the  Secre-     «ec  ogon  w  c 
tary  of  War  to  keep  in  his  personal  possession,  at  his  own  risk,  the  public  moneys     k 
which  have  been  intrusted  to  him  for  disbursement,  and  money  in  hand  may  be  dis- 
bursed at  once  without  being  placed  in  depositories  if  payments  are  due.    The 
amount  of  subsistence  funds  which  a  commissary  may  keep  in  his  personal  posses- 
sion, at  his  own  risk,  is  stated  in  orders  from  the'  War  Department.    (Par.  584,  ibid.) 

A  disbursing  officer  ceasing  to  act  as  such  and  having  public  funds  to  his  credit 
in  any  office  or  bank  will  at  once  inform  the  Secretary  of  the  Treasury,  stating  what 
checks  drawn  against  the  same  are  still  outstanding  and  unpaid.  (Par.  585,  ibid.) 

No  officer  disbursing  money  for  the  military  service,  or  directing  the  disburse- 
ment thereof,  shall  be  concerned  individually,  directly  or  indirectly,  in  the  purchase 
or  sale  of  any  article  intended  for,  used  by,  or  pertaining  to  the  department  of  the 
public  service  in  which  he  is  engaged.  (Par.  587,  A.  K.,  1895.) 

No  officer  or  clerk  of  a  disbursing  officer  shall  be  interested  in  the  purchase  of  any 
soldier's  certificate  of  pay  due  or  any  other  claim  against  the  United  States.  (Par. 
588,  ibid.) 

Officers  or  agents  in  the  military  service  will  not  purchase  supplies  for  the  Gov- 
ernment from  any  other  person  in  the  military  service,  nor  contract  with  any  such 
person  to  furnish  supplies  or  service  to  the  Government,  nor  make  any  Government 
purchase  or  contract  in  which  such  person  shall  be  admitted  to  share  or  receive 
benefit.  (Par.  589,  ibid.) 

Every  disbursing  officer,  in  opening  his  first  account  and  before  issuing  any 
checks,  will  furnish  the  depositary  on  whom  the  checks  are  to  be  drawn  with  his 
official  signature,  duly  verified  by  some  officer  whose  signature  is  known  to  the 
depositary.  (Par.  591,  ibid.) 

For  every  Treasury  draft  received  by  a  depositary  to  be  placed  to  the  official  credit 
of  a  disbursing  officer,  and  for  every  deposit  of  funds  made  by  the  officer  to  his  offi- 
cial credit,  subject  to  payment  of  his  checks,  a  receipt,  numbered  in  serial  order  and 
giving  the  place  and  date  of  issue,  will  be  furnished  him  by  the  depositary,  setting 
torth  the  character  of  the  funds,  i.  e.,  whether  coin  or  currency.  If  the  credit  is 
made  by  a  disbursing  officer's  check  transferring  funds,  the  essential  items  of  the 
check  will  be  enumerated,  and  if  by  a  Treasury  draft,  the  warrant  number.  The 
title  of  the  officer  will  be  expressed,  and  the  title  of  the  account  will  also  show  for 
what  branch  of  the  public  service  it  is  kept.  The  receipt,  called  lia  disbursing 
officer's  receipt,"  will  be  retained  by  the  officer  in  whose  favor  it  is  made.  (Par. 
592,  ibid.) 

It  is  within  the  power  of  the  accounting  officers,  in  the  settling  of  accounts  of  dis- 
bursing officers,  where  it  appears  that  an  expenditure  has  been  made  from  the 
wrong  appropriation,  if  the  expenditure  be  right  in  itself  and  correct  otherwise,  to 
charge  the  amount  to  the  appropriation  for  which  the  expenditure  is  liable.  If  at 


170  THE   MILITARY    LAWS    OP    THE    UNITED    STATES. 

assistant  treasurers  of  the  United  States,  and  to  draw  for 
the  same  only  as  it  may  be  required  for  payments  to  be 
made  by  him  in  pursuance  of  law;  and  draw  for  the  same 
only  in  favor  of  the  persons  to  whom  payment  is  made; 
and  all  transfers  from  the  Treasurer  of  the  United  States 
to  a  disbursing  officer  shall  be  by  draft  or  warrant  on  the 
Treasury  or  an  assistant  treasurer  of  the  United  States. 
In  places,  however,  where  there  is  no  treasurer  or  assistant 
treasurer,  the  Secretary  of  the  Treasury  may,  when  he 
deems  it  essential  to  the  public  interest,  specially  authorize 
in  writing  the  deposit  of  such  public  money  in  any  other 
public  depository,  or,  in  writing,  authorize  the  same  to  be 
kept  in  any  other  manner,  and  under  such  rules  and  regu 
lations  as  he  may  deem  most  safe  and  effectual  to  facilitate 
the  payments  to  public  creditors.  (See  sec.  5488,  R.  8.) 
deEosi7t?fnsfe^  ^^'  *^  persons  charged  by  law  with  the  safe  keeping, 
aM°payment8  er>  transfer,  and  disbursement  of  the  public  moneys,  other 
9oA8Uf6sv.98t663;  than  those  connected  with  the  Post  Office  Department,  are 
sec.  3643,  R.S.  required  to  keep  an  accurate  entry  of  each  sum  received 
and  of  each  payment  or  transfer. 

488-  A11  Slims  appropriated  for  the  various  branches  of 


pIMa?d3  1809  c  expenditure  in  the  public  service  shall  be  applied  solely  to 
28,8.i,V.'2,p.535!the  objects  for  which  they  are  respectively  made  and  for 

Feb.  12,  1868,  c. 

s,  a.  2,  v.  is,  p.  36.  no  others. 
Keo'expe\!di  -     489.  No  Department  of  the  Government  shall  expend,  in 


d  ap"  any  one  fiscal  year,  any  sum  in  excess  of  appropriations 
25i"sy72v18i76°'c'ma(le  by  Congress  for  that  fiscal  year,  or  involve  the  Gov- 
251!  ernment  in  any  contract  for  the  future  payment  of  money 

Sec.  3679,  R.S.  in  excess  of  such  appropriations.      (See  sees.  3733,  5503, 
3732,  R.  8.)  _  _ 

the  time  of  the  settlement  the  appropriation  to  which  the  expenditure  is  chargeable 
is  exhausted,  the  amount  should  be  disallowed  against  the  disbursing  officer,  and  he 
should  be  required  to  apply  to  Congress  for  relief  (3  Dig  Compt.  Dec..  36.) 

Where  one  Department  receives  from  another  Department  supplies  which  are 
within  the  scope  of  appropriations  belonging  to  each  a  reimbursement  of  the  appro- 
priation of  the  one  from  the  appropriation  of  the  other,  of  the  cost  of  the  supplies, 
is  not  a  violation  of  section  3678,  Revised  Statutes  ;  nor  do  the  provisions  of  section 
3618,  Revised  Statutes,  apply  to  such  case.  (17  Opm.  Att.  Gen.,  480.  ) 

PECUNIARY  RESPONSIBILITY  OF  OFFICERS. 

An  officer  will  have  credit  for  an  expenditure  of  money  made  in  obedience  to  the 
order  of  his  commanding  officer.  Every  order  issued  by  any  military  authority 
which  may  cause  an  expenditure  of  money  in  a  staff  department  will  be  given  in 


writing.  One  copy  thereof  will  be  forwarded  by  the  officer  receiving  it  to  the  head 
of  his  department,  and  the  other  will  be  filed  by  the  disbursing  officer  with  his 
voucher  for  the  disbursement.  If  the  expenditure  be  disallowed  it  will  be  charged 


to  the  officer  who  ordered  it.     (Par.  653,  A.  R.,  1895.) 

Where  purchases  of  army  supplies  are  made  in  pursuance  of  an  order  issued  by  com- 
petent military  authority,  said  order,  or  a  certified  copy  thereof,  should  be  filed  with 
the  first  voucher  on  which  payment  for  supplies  is  made  and  reference  be  made 
thereto  on  all  the  others.  (3  Dig.  Compt.  Dec.,  1,  287.) 

In  questions  of  illegal  expenditures  made  by  an  officer  of  the  Army  in  obedience 
to  his  superior,  the  paragraph  of  the  Army  Regulations  -which  provides  that  an 
officer  shall  have  credit  for  an  expenditure  of  money  or  property  made  in  obedience 
to  the  order  of  his  commanding  officer,  and  that  if  the  expenditure  is  disallowed  it 
shall  be  charged  to  the  officer  who  ordered  it,  will,  as  a  rule,  be  followed  in  determin- 
ing which  officer  is  to  be  held  liable.  Where  there  is  a  plain  direction  or  prohibition 
spread  upon  the  statute  books,  which  is  as  well  known  to  an  inferior  as  to  a  superior 
officer,  it  is  clearly  binding  upon  both  officers  and,  unless  it  can  be  affirmatively  showt 
that  the  inferior  called  the  attention  of  the  superior  officer  to  the  infringement  of 
law  in  the  order,  and  that  thereupon  the  superior  renewed  the  order,  the  interior 
officer  must  be  held  liable.  (3  ibid.,  147.) 

If  a  payment  made  on  the  certificate  of  an  officer  as  to  the  facts  is  afterwards 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  171 

PROCEEDS   OF   SALES. 

MISCELLANEOUS   RECEIPTS. 

490.  The  gross  amount  of  all  moneys  received  from  what-  Proceeds  of 
ever  source  for  the  use  of  the  United  States,  except  as  pV^ited  without 
otherwise  provided  in  the  next  section,  shall  be  paid  by  the  deMar!13,ni849,  c. 
officer  or  agent  receiving  the  same  into  the  Treasury,  at  as  "93  ;8'sePvt.9'28,' 
early  a  day  as  practicable,  without  any  abatement  or  deduc-  Jfp0^78' 8' 3' v' 
tion  on  account  of  salary,  fees,  costs,  charges,  expenses,  or  sec.36i7,R.s. 

disallowed  for  error  of  fact  in  the  certificate,  it  will  pass  to  the  credit  of  the  disbursing 
officer  and  be  charged  to  the  officer  who  gave  the  certificate ;  but  the  disbursing  officer- 
can  not  protect  himself  in  an  erroneous  payment  made  without  due  care  by  charging 
lack  of  care  against  the  officer  who  gave  the  certificate.  (Par.  654.  A.  R.,  1895  ) 

Paragraph  736  of  the  Army  Regulations  of  1884  (par.  736,  A.  R..  1895)  provides 
that  accounts  paid  on  a  certificate  and  afterwards  disallowed  for  error  of  fact  in  tha 
certificate  shall  pass  to  the  credit  of  the  disbursing  officer  and  be  charged  to  the 
officer  who  gave  the  certificate.  Held  that  it  is  the  duty,  however,  of  the  disbursing 
officer  to  exercise  the  utmost  care  and  vigilance  in  the  disbursement  of  the  public 
funds  intrusted  to  him  and  it  is  his  imperative  duty  to  see  that  the  entire  amount 
claimed  is  due  and  that  payment  thereof  is  fully  warranted  from  the  data  given  on 
the  muster  roll  or  final  statement  If  the  information  is  not  sufficient  he  must  seek 
for  more  He  can  not  protect  himself  in  an  erroneous  payment  made  without  due 
care,  by  charging  a  similar  lack  of  care  against  the  officer  who  gave  the  certificate. 
(3  Dig.' Compt.  Dec.,  10.) 

MONEY  VOUCHERS,  a 

Vouchers  will  ordinarily  be  made  in  duplicate,  or,  if  required  in  triplicate,  and 
the  number  made  will  be  stated  on  each  copy,  (Par  631,  A.  R.,  1895.) 

The  correctness  of  the  facts  stated  on  a  voucher  and  the  justness  of  the  account 
must  be  certified  by  an  officer  (Par.  632  A.  R  ,  1895  ) 

Every  voucher  in  support  of  a  payment  for  supplies,  or  for  services  other  than  by 
the  day  or  month,  whether  it  be  made  pursuant  to  a  formally  prepared  contract,  an 
accepted  bid,  or  a  purchase  without  advertising  (unless  it  comes  within  the  excepted 
cases  provided  for  in  the  following  paragraph),  must  have  attacbed  to  it  an  original 
bill  (b)  furnished  by  the  creditor,  dated  and  signed  by  him  or  his  authorized  repre 
st-iitative,  giving  his  place  of  business  or  residence,  and  stating  (if  for  supplies 
furnished)  the  date  of  the  purchase  the  quantity  and  price  of  each  article  and  the 
amount  or  (if  for  services  other  than  by  the  day  or  month)  the  character  of  the 
services,  the  date  or  dates  on  which  rendered,  and  the  amount.  A  voucher  so  accom- 
panied will  be  made  out  in  favor  of  the  creditor,  giving  his  address  and  may  state 
the  account  in  general  terms,  with  the  aggregate  amount  only  extended,  and  the 
words  "as  per  bill  hereto  attached.'  or  words  of  like  import,  added.  Where  a  pur- 
chase under  an  accepted  bid  after  public  notice  is  made  in  the  Quartermaster's  or 
Subsistence  Department,  the  voucher,  besides  being  subject  to  the  foregoing  re- 
quirements, will  be  accompanied  by  a  copy  of  the  public  notice,  the  accepted  bid, 
and  a  copy  of  the  letter  accepting  the  bid,  and  must  contain  a  certificate  that  the 
award  was  made  to  the  lowest  responsible  bidder  for  the  best  and  most  suitable 
articles,  and  that  the  needs  of  the  service  required  the  purchase  to  be  made  in  the 
manner  indicated  by  the  public  notice.  Where  papers  relating  to  two  or  more 
vouchers  are  required  to  accompany  accounts,  they  must  be  filed  with  the  first 
voucher  paid  and  reference  thereto  made  on  the  other  vouchers.  A  voucher  for 
services  by  the  day  or  month  must  state  the  nature  of  the  service,  the  inclusive 
dates  of  service,  the  time  for  which  payment  is  made,  the  rate  of  pay,  and  the 
amount.  (Par.  633,  ibid.) 

When  a  creditor  is  unable  for  any  cause  to  make  out  his  bill,  or  to  have  it  made 
out,  the  disbursing  officer  must  set  forth  on  the  voucher  all  the  details  of  the  account, 
as  required  for  the  bill  by  the  preceding  paragraph,  and  must  give  reasons  in  full  on 
the  voucher  why  a  bill  is  not  furnished.  Original  bills  need  not  be  attached  to 
vouchers  in  the  following  cases,  viz :  Where,  under  a  contract,  quantities  delivered  or 
amounts  due  are  determined  by  a  duly  authorized  inspector,  and  his  certificate  as  to 
the  facts  is  filed  with  the  voucher  to  which  it  pertains:  where  a  bill  of  lading  or 
transportation  req  uest  accompanies  a  voucher  for  transportation  services  performed 
under  public  tariffs ;  where  a  voucher  is  for  telegraphic  services  at  rates  fixed  by  the 
Postmaster  General;  where  a  voucher  is  for  services  by  the  day  or  month,  or  where 
a  creditor  makes  out  his  bill  on  a  blank  form  of  voucher  and  certifies  to  its  correct- 
ness. (Par.  634,  ibid.) 

The  giving  or  taking  of  receipts  in  blank  for  public  money  is  prohibited.  (Par. 
637,  ibid.) 

A  voucher  for  funds  disbursed  will,  before  being  signed  by  a  public  creditor,  be 

a.  The  word  "voucher"  can  not  bo  construed  as  synonymous  with  the  word 
"receipt,"  it  having  a  far  broader  signification  in  law.     Any  written  evidence  which 
establishes  facts  entitling  a  disbursing  officer  to  credit  is  a  voucher.     "The  word 
'voucher 'would  seem  to  imply  evidence,  written  or  otherwise,  of  the  truth  of  a  fact." 
(The  People  v.  Green,  5  Daly,  N.  Y.,  194;  3  Dig.  Compt.  Dec.,  378.) 

b.  All  vouchers  rendered  by  disbursing  officers  or  agents  of  the  Engineer,  Quar- 
termaster's, and  Subsistence  Departments  for  purchases  or  services  not  under  con- 
tract, excepting  services  by  the  day  or  month,  must  be  accompanied  by  the  original 
bills  for  the  same,  furnished  by  the  person,  firm,  or  corporation  from  whom  the  pur- 
chase was  made  or  by  whom  the  service  was  rendered.    In  case  any  bill  pertains  to 
more  than  one  voucher,  it  should  be  filed  with  the  first  and  reference  made  thereto 
on  each  of  the  others.    (3  Compt.  Dec . ,  381 . ) 


172  THE   MILITARY   LAWS   OF'  THE   UNITED   STATES. 

claim  of  any  description  whatever.1    But  nothing  herein 
shall  aflect  any  provision  relating  to  the  revenues  of  the 
Post-Office  Department, 
proceeds  of     491.  All  proceeds  of  sales  of  old  material,  condemned 

sales    of     mate- 
rials, stores,  supplies,  or  other  public  property  of  any  kind,  ex- 

140,  sy5,V.  IT,'  p'.  cept  the  proceeds  of  the  sale  or  leasing  of  marine  hospitals, 

83;  Apr.  20, 1866,  *  * 

c.  63,  ss.  i,  2,  v.  14,  or  of  the  sales  of  revenue-cutters,  or  of  the  sales  of  com- 

5847%.  48,as!i,  ?!  missary  stores  to  the  officers  and  enlisted  men  of  the  Army, 

1866,1™ 299" 8^25!  or  of  materials,  stores,  or  supplies  sold  to  officers  or  soldiers 

£uK?iS?i!of  the  Army,  or  of  the  sale  of  condemned  Navy  clothing,  or 

2?i  !0ivr.%V  °^  Sa^es  °f  materials,  stores,  or  supplies  to  any  exploring  or 

24s'ec.36i8,B.s.  surveying  expedition  authorized  bylaw,  shall  be  deposited 

and  covered  into  the  Treasury  as  miscellaneous  receipts,  on 

account  of  "proceeds  of  Government  property,"  and  shall 

made  out  in  full,  with  the  place  of  payment  and  the  name,  rank,  regiment,  or  corps 
of  the  paying  officer  entered  in  the  receipt,  and  the  exact  amount  of  money  written 
put  in  words  in  the  receipt.  When  vouchers  are  sent  by  mail  for  signature  the  date 
in  the  receipt  will  be  left  blank,  and  the  check  in  payment  will  not  be  drawn  until 
the  vouchers  are  returned,  properly  signed,  when  the  date  of  the  check  will  be  added 
to  the  receipt,  a  (Par.  630,  ibid.) 

An  order  from  the  court  appointing  a  receiver  and  showing  his  authority  to  act  as 
such  should  be  filed  with  or  referred  to  in  every  voucher  or  claim  presented  by  him 
for  payment.  (3  Dig.  Compt.  Dec.,  378.) 

The  term  "small  amounts,"  as  used  in  the  Second  Comptroller's  decision  of  March 
14,  1887,  applies  only  to  occasional  payments  of  amounts  deemed  too  insignificant  to 
justify  the  Government  in  demanding  written  evidence  of  an  agent's  authority  to 
receive  and  receipt  for  moneys,  in  accordance  with  the  general  rule.  (3  ibid.,  378.) 

Receipts  for  small  amounts  for  occasional  service  paid  to  corporations,  such  as 
railroad,  telegraph,  turnpike,  transfer,  express,  steamboat,  hotel,  newspaper,  and 
ice  companies,  may  be  signed  by  the  local  agent  in  charge  of  the  business  of  the 
company  at  the  place  where  the  service  is  rendered,  or  where  it  begins  or  terminates, 
and  the  certificate  of  the  officer  making  payment  that  the  person  to  whom  payment 
was  thus  made  was  then  the  local  agent  of  the  company,  in  charge  of  its  business  at 
the  place  designated,  will  be  sufficient  evidence  of  the  agent's  authority  to  receive 
and  receipt  for  the  money  paid.  (Ibid.) 

Under  a  resolution  of  the  executive  committee  of  the  Western  Union  Telegraph 
Company,  passed  November  24,  1886,  any  person  in  charge  of  any  office  of  said  com- 
pany is  authorized  to  receive  and  receipt  for  payments  to  said  company,  and  receipts 
by  such  persons  for  such  payments  are  to  be  held  as  binding  upon  said  company. 
(Ibid.,  p.  379.) 

All  vouchers  in  support  of  payments  of  percentages  retained  under  contracts  must 
be  accompanied,  as  contemplated  by  section  277  of  the  Revised  Statutes,  by  satis- 
factory evidence,  either  primary  or  secondary,  that  the  several  amounts  thereon  paid 

1  The  necessary  expenses  of  all  sales  of  public  property,  including  the  services  of 
an  auctioneer,  are  properly  payable  from  the  total  receipts  from  such  sale,  unless 
provision  is  specifically  made  in  appropriation  acts  to  meet  such  expenses.  (3  Dig. 
Compt.  Dec.,  323.) 

All  proceeds  of  sales  of  public  property  covered  into  the  Treasury  as  miscellaneous 
receipts  should  be  charged  and  credited  on  account  of  "proceeds  of  Government 
property,"  as  contemplated  by  section  3618  of  the  Revised  Statutes.  (3  Dig.  Compt. 

Moneys  received  for  stores,  materials  or  supplies  (except  subsistence  stores)  sold 
to  officers,  enlisted  men,  or  exploring 
be  deposited  to  the  credit  of  the  1 

revert  to  the  appropriation  out  of  which  originally  expended, 
useless  ordnance  material  are  expended  under  conditions  prescribed  by  law.  Proceeds 
of  sales  of  subsistence  supplies  are  immediately  available  for  the  purchase  of  fresh 
supplies.  (Par.  614,  A.  R.,  1895.)  Under  section  3692  of  the  Revised  Statutes  all 
moneys  received  from  the  sale  of  materials,  stores,  or  supplies  to  officers  and  sol- 
diers of  the  Army  can  be  applied  to  the  liquidation  of  liabilities  against  the  appro- 
priation out  of  which  they  were  originally  expended,  only  during  the  fiscal  year  in 
which  the  sale  was  made.  (3  Dig.  Compt.  Dec.,  322.) 

The  proceeds  of  sales  of  all  public  property,  the  disposition  of  which  is  not  pro- 
vided for  by  the  preceding  paragraph,  after  the  expenses  of  sale  have  been  deducted, 
will  be  deposited  to  the  credit  of  the  Treasurer  of  the  United  States  as  "  Miscel- 
laneous receipts  on  account  of  proceeds  of  Government  property,"  lor  which  certifi- 
cates of  deposit  will  issue,  showing  the  name,  rank,  regiment  or  corps  of  the  depositor, 
the  nature  of  the  deposit,  the  kind  of  property,  and  the  bureau  to  which  it  pertained. 
(Par.  615,  A.  R.,  1895.) 

The  transfer  of  public  property  from  one  bureau  or  Department  to  another  is  not 
regarded  as  a  sale.  If  money  is  received  therefor,  it  may  be  used  to  replace  such 
stores  and  will  be  reported  accordingly.  (Par.  616,  ibid.) 

a  Every  voucher  signed  on  behalf  of  any  person,  firm,  or  corporation  by  an  agent 
or  attorney  should  bear  the  name  of  the  proper  firm,  person,  or  corporation,  followed 
by  the  name  of  the  agent  or  attorney.  (3  Dig.  Compt.  Dec.,  379.} 


eriais  or  supplies  (except  suosistence  stores)  soia 
:ig  or  surveying  expeditions  authorized  by  law  will 
Treasurer  of  the  United  States,  and  respectively 
which  originally  expended.  Proceeds  of  sales  of 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  173 

not  be  withdrawn  or  applied,  except  in  consequence  of  a 
subsequent  appropriation  made  by  law.1 

492.  So  much  of  the  appropriation  for  subsistence  of  the  Appropriations 

fo  r    subsistence 

Army  as  may  be  necessary  may  be  applied  to  the  pur  chase  available  tor  pur- 
of  subsistence  stores  for  sale  to  officers  for  the  use  of  them-  for  sale  to  offi- 
selves  and  their  families  and  to  commanders  of  companies  Proceeds  of 

...     _  -salesavailablefor 

or  other  organizations,  tor  the  use  of  the  enlisted  men  of  similar  pur- 
their  companies  or  organizations,  and  the  proceeds  of  all c  chei3o, Mar.  3, 
sales  of  subsistence  supplies   shall  hereafter  be  exempt 1875>  v' 18>  p- 410- 
from  being  covered  into  the  Treasury  and  shall  be  imme- 
diately available  for  the  purchase  of  fresh  supplies.    Act  of 
March  3, 1875  (18  Stat.  L.,  410). 

493.  From  and  after  the  passage  of  this  act  the  Secre-  Sales  of  unserv- 
tary  of  War  be,  and  he  is  hereby,  authorized  and  directed 1C  junl°22nJi874,' 
to  be  caused  to  be  sold  in  such  manner,  and  at  such  times  v'18'p* 

and  places,  and  in  such  quantities,  as  shall  most  conduce 
to  the  interest  of  the  United  States,  all  obsolete  and  un- 
serviceable ammunition  and  leaden  balls,  and  the  surplus 
of  pig  lead  in  excess  of  two  thousand  tons  now  stored  in 
the  various  arsenals  of  the  United  States,  and  to  cause  the 

liavi  been  retained,  have  since  become  payable,  and  have  not  previously  been  paid. 
(Ibid.) 

Hereafter  vouchers  in  support  of  partial  payments,  or  vouchers  on  which  the 
retention  of  percentages  are  noted,  must  be  made  in  triplicate  instead  of  duplicate. 
One  of  said  vouchers  is  to  be  retained  by  the  disbursing  officer  and  the  other  two  to 
be  transmitted  with  his  accounts  to  the  accounting  officers.  The  two  vouchers  so 
transmitted  are  to  be  examined  and  compared  when  the  officer's  accounts  are 
adjusted  and  settled,  one  of  them  to  be  subsequently  withdrawn  by  the  Auditor  and 
filed  as  a  subvoucher  with  and  in  support  of  the  voucher  on  which  the  final  payment 
is  made.  (Ibid.) 

It  will  be  deemed  a  sufficient  compliance  with  the  requirement  as  to  vouchers  in 
support  of  partial  payments,  including  those  on  which  percentages  are  retained,  if 
the  vouchers  intended  to  be  withdrawn  by  the  Third  Auditor,  after  the  necessary 
action  of  the  accounting  officers  thereon  and  filed  as  subvouchers  with  the  proper 
vouchers  in  support  of  final  payments,  be  made  without  receipts  and  without  copies 
of  any  sub  vouchers  which  may  be  filed  with  the  original  vouchers,  but  complete  in 
all  other  respects  and  certified  to  by  the  proper  officers.  (Ibid.) 

When  a  payment  has  been  made  to  correct  an  error  occurring  in  a  previous  voucher, 
the  voucher  on  which  the  error  was  made,  or  other  sufficient  evidence  of  the  error; 
should  be  transmitted  with  the  accounts  in  which  the  disbursing  officer  claims  credit 
(Ibid.,  p.  380.) 

Satisfactory  evidence  is  required  that  commutation  of  sugar  and  coffee  to  enlisted 
men  traveling  under  orders  has  been  properly  authorized  before  credit  can  b« 
allowed  a  disbursing  officer  for  a  disbursement  on  that  account.  (Ibid.) 

Vouchers  on  which  percentages  are  retained,  and  which  might  otherwise  be  sus- 
pended under  the  decisions  relating  to  such  vouchers,  may  be  passed  to  the  credit  oi 
the  disbursing  officer  or  agent  rendering  them  when  the  vouchers  on  which  thd 
retained  percentages  are  paid  are  embraced  in  the  same  settlement  with  those  on 
which  the  percentages  are  retained.  (Ibid.) 

Vouchers  in  support  of  the  commutation  of  rations  to  soldiers  on  furlough  should 
be  accompanied  by  the  original  furlough,  or  a  certificate  that  the  fact  of  payment 
has  been  indorsed  thereon,  or  other  evidence  sufficient  to  lessen  the  possibility  of  a 
double  payment  of  the  account.  (Ibid.) 

Vcuchers  in  support  of  payments  for  telegrams  on  public  business  must  be  made 
in  the  name  of  the  company  rendering  the  telegraphic  service  and  receipted  by  its 
proper  officer  or  agent,  as  contemplated  by  paragraphs  726  and  727  of  the  Arrnv  Reg- 
ulations of  1889.  (See  paragraphs  641-644,  A.  R.,  1895.) 

The  certificates  required  to  accompany  vouchers  in  support  of  payments  for  pur- 
chases of  supplies  for  the  Army  made  by  the  Quartermaster's  Department  or  by  the 
Subsistence  Department,  whether  given  singly  or  in  a  consolidated  form,  should  be 
written,  stamped,  or  printed  upon  the  voucher  to  which  they  pertain,  and  the  papers 
furnishing  any  portion  of  the  evidence  required  in  such  cases  must  be  filed  with  the 
voucher  to  which  they  pertain,  except  when  any  such  paper  relates  to  two  or  more 
vouchers,  in  which  case  it  should  be  filed  with  the  first  of  said  vouchers  and  refer- 
ence thereto  made  on  the  others.  (Ibid.) 

1  Under  section  3618  of  the  Revised  Statutes,  paragraphs  491  ante  and  592  post,  all 
proceeds  of  sales  of  old  material,  condemned  stores,  supplies,  or  other  public  prop- 
erty of  any  kind,  with  certain  specified  exceptions,  are  to  be  deposited  and  covered 
into  the  Treasury  as  miscellaneous  receipts,  on  account  of  "proceeds  of  Govern- 
ment property,"  and  are  not  to  be  withdrawn  or  applied,  except  in  consequence  of  a 
subsequent  appropriation  made  by  law.  (3  Dig.  Compt.  Dec.,  322.) 


174      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

net  proceeds  of  sirch  sale,  after  paying  all  costs  and  ex- 
penses of  breaking  up  acid  preparing  said  ammunition  for 
sale,  and  all  the  necessary  expenses  of  such  sale,  including 
the  cost  of  transportation  to  the  place  of  sale,  to  be  cov- 
ered into  the  Treasury  of  the  United  States  with  full  ac- 
cojints  of  said  expenses.  Act  of  June  22,  1874  (18  Stat. 
L.,  200). 
saiesof  useless  494.  That  the  Secretary  of  the  Navy  is  authorized  to  dis- 

ord nance;  pro-  *  v 

ceeds  available  pose  of  the  useless  ordnance  material  on  hand  at  public 

for  purchases  of  r  , 

new  material,  sale,  according  to  Jaw,  the  net  proceeds  of  which  shall  be 
i875,V.i8,pa388.  tmrned  into  the  Treasury;  and  an  amount  equal  to  the 
same  is  hereby  appropriated,  to  be  applied  to  the  purpoes 
of  procuring  a  supply  of  material  adapted  in  manufacture 
and  calibre  to  the  present  wants  of  the  service;  but  tbere 
shall  be  expended,  uu'der  this  provision,  not  more  than 
seventy-five  thousand  dollars  in  one  year ;  and  in  the  case  of 
sale  of  like  materials  in  the  War  Department,  the  proceeds 
of  which  shall  be  turned  into  the  Treasury,  an  amount 
equal  to  the  net  proceeds  of  such  sale  is  hereby  appro- 
priated for  the  purpose  of  procuring  a  supply  of  material 
adapted  in  manufacture  and  calibre  to  the  present  wants 
of  the  war  service;  and  there  shall  be  expended  in  the 
War  Department,  under  this  provision,  nfot  more  than 
seventy-five  thousand  dollars  in  any  one  year.  Act  of 
March  5, 1875  (18  Stat.  L.,  388). 

ACCOUNTS. 

juf°  17*1862,0.     495t  Ever7  officer  or  agent  of  the  United  States  who 
593'  Va'rVise1?'  receiyes  public  money  which  he  is  not  authorizad  to  retain 
571'  jui  ^ISTO' as  sa^arv>  Pay>  or  emolument,  shall  render  his  accounts 
c.295,  s.'  15, V.  i8J  monthly.1     Such  accounts,  with  the  vouchers  necessary  to 
1877,  c.'  69,  v.  19!  the  correct  and  prompt  settlement  thereof,  shall  be  sent 
1894,  v.28,V 206,  by  mail,  or  otherwise,  to  the  Bureau  to  which  they  pertain, 
sec.  3622,  R.  s.  within  ten  days  after  the  expiration  of  each  successive 
month,  and,  after  examination  there,  shall  be  passed  to  the 
proper  accounting  officer  of  the  Treasury  for  settlement. 
Disbursing  officers  of  the  Navy  shall,  however,  render  their 
accounts  and  vouchers   direct  to  the  proper  accounting 
officer  of  the  Treasury.     In  case  of  the  non-receipt  at  the 
Treasury  or  proper  Bureau,  of  any  accounts  within  a  reason- 
able and  proper  time  thereafter,  the  officer  whose  accounts 
are  in  default   shall  be  required  to  furnish  satisfactory 
evidence  of  having  complied  with  the  provisions  of  this 
section.     Nothing    herein    contained    shall,   however,   be 

1  The  forms  for  the  rendition  of  accounts  are  prescribed  by  the  Comptroller  of  the 
Treasury.  See,  also,  sec.  4  of  the  act  of  August  30,  1890,  26  Stat.  L.,  413,  which 
required  such  accounts  to  be  rendered  quarterly. 


THE   MILITARY    LAWS   OF   THE    UNITED   STATES.  175 

construed  to  restrain  the  heads  of  any  of  the  Departments 
from  requiring  such  other  returns  or  reports  from  the 
officer  or  agent,  subject  to  the  control  of  such  heads  of 
Departments,  as  the  public  interest  may  require.  (See 
sec.  5491  R.  8.,  par.  502,  post.) 

496.  All  officers,  agents,  or  other  persons  receiving  pub- 
lie  moneys,  shall  render  distinct  accounts  of  the  application 

thereof,  according  to  the  appropriation  under  which  1809  c 

same  may  have  been  advanced  to  them.  j-s^  s.  i,  v.  2,  p. 

SUITS   FOR  RECOVERY   OF  MONEY.  Sec.  3623,  B.  S. 

497.  Whenever  any  person  accountable  for  public  money,   suits  to  recover 
neglects  or  refuses  to  pay  into  the  Treasury  the  sum  or    Mar.'a,  1797,  c. 
balance  reported  to  be  due  to  the  United  States,  upon  the  512.  8' 
adjustment  of  his  account,  the  Comptroller  of  the  Treas-   see.  3624,  B.S. 
ury  shall  institute  suit  for  the  recovery  of  the  same,  adding 

to  the  sum  stated  to  be  due  on  such  account,  the  commis- 
sions of  the  delinquent,  which  shall  be  forfeited  in  every 
instance  where  suit  is  commenced  and  judgment  obtained 
thereon,  and  an  interest  of  six  per  centum  per  annum,  from 
the  time  of  receiving  the  money  until  it  shall  be  repaid  into 
the  Treasury.1 

MISCELLANEOUS  PROVISIONS. 

498.  Every  officer  charged  with  the  payment  of  any  of  re^n^ity  for 
the  appropriations  made  by  any  act  of  Congress,  who  pay  s  j^ger  sums  than 
to  any  clerk,  or  other  employee  of  the  United  States,  a    Mar.  a,  1353,  c. 
sum  less  than  that  provided  by  law,  and  requires  such  239!  8' 
employee  to  receipt  or  give  a  voucher  for  an  amount  greater    sec.  5483,  B.S. 
than  that  actually  paid  to  and  received  by  him,  is  guilty 

of  embezzlement,  and  shall  be  fined  in  double  the  amount 
so  withheld  from  any  employee  of  the  Government,  and 
shall  be  imprisoned  at  hard  labor  for  the  term  of  two  years. 

499,  Every  disbursing  officer  of  the  United  States  who  fic^8^rilwfui°if" 
deposits  any  public  money  intrusted  to  him  in  any  place  depositing,  con- 

.,.,,,  .     verting,  loaning, 

or  in  any  manner,  except  as  authorized  by  law,  or  converts  or    transferring 


to  his  own  use  in  any  way  whatever,  or  loans  with  or  with- 

out  interest,  or  for  any  purpose  not  prescribed  by  law  J^2'  8*  2f  v*  u>  p' 

withdraws  from  the  Treasurer  or  any  assistant  treasurer,    Sec>6488  ^g. 

or  any  authorized  depository,  or  for  any  purpose  not  pre- 

scribed by  law  transfers  or  applies  any  portion  of  the  public 

money  intrusted  to  him,  is,  in  every  such  act,  deemed  guilty 

of  an  embezzlement  of  the  money  so  deposited,  converted, 

loaned,  withdrawn,  transferred,  or  applied;    and  shall  be 

'For  other  statutory  provisions  respecting  the  recovery  of  debts  or  balances  due 
the  United  States,  see  the  titles  "The  Comptroller  of  the  Treasury"  and  "The  Au- 
ditors of  the  Treasury  "  in  the  chapter  entitled  THE  TREASURY  DEPARTMENT,  and 
the  title  "  Distress  Warrants  "  in  the  chapter  entitled  THE  PUBLIC  MONEY.  See  also 
U.  S.  v.  Gau8sen,19WaH.,198. 


176  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

punished  by  imprisonment  with  hard  labor  for  a  term  not 
less  than  one  year  nor  more  than  ten  years,  or  by  a  fine  of 
not  more  than  the  amount  embezzled  or  less  than  one  thou- 
sand dollars,  or  by  both  such  fine  and  imprisonment.  (See 
sees.  3620,  5497,  R.  8.) 

Failure    of     500.  If  the  Treasurer  of  the  United  States,  or  any  assist- 
keep  ant  treasurer,  or  any  public  depositary,  fails  safely  to  keep 


plMar.™,°S!'c.  all  moneys  deposited  by  any  disbursing  officer  or  disburs- 

249.  s<  2'  v'  Ul  p"  in£  agent,  as  well  as  all  moneys  deposited  by  any  receiver, 

sec.  5*89  B.  s.  c°Hector,  or  other  person  having  moneys  of  the  United 

States,  he  shall  be  deemed  guilty  of  embezzlement  of  the 

moneys  not  so  safely  kept,  and  shall  be  imprisoned  not  less 

than  six  months  nor  more  than  ten  years,  and  fined  in  a 

sum  equal  to  the  amount  of  money  so  embezzled.     (See  sec. 

3639,  R.  S.) 

Custodians  of     501.  Every  officer  or  other  person  charged  by  any  act  of 
Famns  ^safely  Congress  with  the  safe-keeping  of  the  public  moneys,  who 

keep,  without  _   ..  ° 

loaning,  etc.       fails  to  safely  keep  the  same,  without  loaning,  using,  con- 

Aug  6,  1846,  c.  ,.  ,r  '*.>'>      v,       i 

90,  s.  16,  v.  9,  p.  verting  to  his  own  use,  depositing  in  banks,  or  exchanging 
63sec.  6490,  R.S.  for  other  funds  than  as  specially  allowed  by  law,  shall 
be  guilty  of  embezzlement  of  the  money  so  loaned,  used, 
converted,  deposited,  or  exchanged,  and  shall  be  imprisoned 
not  less  than  six  mouths  nor  more  than  ten  years,  and  fined 
in  a  sum  equal  to  the  amount  of  money  so  embezzled.  (See 
sec.  3639,  R.  S.) 

ce^rendeV^     502'  Everv  °fficer  or  agent  of  the  United  States  who, 
counts,  etc.       having  received  public  money  which  he  is  not  authorized 

July  17,  1862,  c.  *  . 

199,  s.  i,  v.  12,  p.  to  retain  as  salary,  pay,  or  emolument,  fails  to  render  his 
2  ivp.  accounts  for  the  same  as  provided  by  law,  shall  be  deemed 
e!  gui^y  of  embezzlement,  and  shall  be  fined  in  a  sum  equal 
iMG33*  'so"1?'  if  *°  the  amount  of  the  money  embezzled,  and  shall  be  im- 
v<<?'  pk!SLi  i  c  prisoned  not  less  than  six  months  or  more  than  ten  years. 

NCC«  O'Ttrl*  A*  N»   •*• 

(See  sees.  3622,  3633,  R.  S.) 

Failure  to  de-     503.  Every  person  who,  having  moneys  of  the  United 

p0MarSri857,ec.'  States  in  his  hands  or  possession,  fails  to  make  deposit  of 

249';  AugTe.YwS,'  the  same  with  the  Treasurer,  or  some  assistant  treasurer, 

<^90;8.i6,v.9,p.  or  some  public  depositary  of  the  United  States,  when  re- 

sec.  5492,  B.S.  quired  so  fo  fto  ^y  ^ne  Secretary  of  the  Treasury,  or  the 

head  of  any  other  proper  Department,  or  by  the  account- 

ing officers  of  the  Treasury,  shall  be  deemed  guilty  of  em- 

bezzlement thereof,  and  shall  be  imprisoned  not  less  than 

six  months  nor  more  than  ten  years,  and  fined  in  a  sum 

equal  to  the  amount  of  money  embezzled. 

Provisions  of     504.  The  provisions  of  the  five  preceding  sections  shall 

the  five  preced-  *rj  °_ 

ing  sections,  con-  be  construed  to  apply  to  all  persons  charged  with  tne  sate- 
8  Aug.'  6,  1846,  c.  keeping,  transfer,  or  disbursement  of  the  public  money, 
.6|;  whether  such  persons  be  indicted  as  receivers  or  deposita- 
ries of  the  sam  (See  sees.  3615-3652,3  R.  S.) 


c! 


THE   MILITARY   LAWS   OF    THE    UNITED    STATES.  177 

505.  Upon  the  trial  of  any  indictment  against  any  per- 

son for  embezzling  public  money  under  the  provisions  of  de?ceof  'embel- 
the  six  preceding  sections,  it  shall  be  sufficient  evidence?  ^^^  1846  c 
for  the  purpose  of  showing  a  balance  against  such  person,  ' 

to  produce  a  transcript  from  the  books  and  proceedings  of 
the  Treasury,  as  required  in  civil  cases,  under  the  provi- 
sions for  the  settlement  of  accounts  between  the  United 
States  and  receivers  of  public  money.1  (See  sees.  3625, 
3633,  R.  8.) 

506.  The  refusal  of  any  person,  whether  in  or  out  of  office, 


charged  with  the  safe-keeping,  transfer,  or  disbursement  of  evidence  of  em. 

&  bezzlement. 

the  public  money,  to  pay  any  draft,  order,  or  warrant  drawn  ibid. 
upon  him  by  the  proper  accounting  officer  of  the  Treasury, 
for  any  public  money  in  his  hands  belonging  to  the  United 
States,  no  matter  in  what  capacity  the  same  may  have  been 
received,  or  may  be  held,  or  to  transfer  or  disburse  any  such 
money  promptly,  upon  the  legal  requirement  of  any  author- 
ized officer,  shall  be  deemed,  upon  the  trial  of  any  indict- 
ment against  such  person  for  embezzlement,  as  prima-facie 
evidence  of  such  embezzlement.  (See  sec.  3644,  R.  S.) 

507.  If  any  officer  charged  with  the  disbursement  of  the  ConTeSne    °f 
public  moneys,  accepts,  receives,  or  transmits  to  the  Treas-   sec.d5496,B.s. 
ury  Department  to  be  allowed  in  his  favor,  any  receipt  or 

voucher  from  a  creditor  of  the  United  States,  without 
having  paid  to  such  creditor  in  such  funds  as  the  officer 
received  for  disbursement,  or  in  such  funds  as  he  may  be 
authorized  to  take  in  exchange,  the  full  amount  specified 
in  such  receipt  or  voucher,  every  such  act  is  an  act  of  con- 
version, by  such  officer,  to  his  own  use,  of  the  amount 
specified  in  such  receipt  or  voucher.  (See  sec.  3652,  R.  S.) 

508.  Every  banker,  broker,  or  other  person  not  an  author- 
ized  depositary  of  public  moneys,  who  knowingly 


from  any  disbursing  officer,  or  collector  of  internal  revenue,  ment- 

or other  agent  of  the  United  States,  any  public  money  on  c.  i22,es.  3,v.  u| 

deposit,  or  by  way  of  loan  or  accommodation,  with  or  with-  Ps6e5c.  5497,  B.S. 

out  interest,  or  otherwise  than  in  payment  of  a  debt  against 

the  United  States,  or  who  uses,  transfers,  converts,  appro- 

priates, or  applies  any  portion  of  the  public  money  for  any 

purpose  not  prescribed  by  law,  and  every  president,  cash- 

ier, teller,  director,  or  other  officer  of  any  bank  or  banking 

association,  who  violates  any  of  the  provisions  of  this  sec- 

tion, is  guilty  of  an  act  of  embezzlement  of  the  public  money 

so  deposited,  loaned,  transferred,  used,  converted,  appro- 

priated, or  applied,  and  shall  be  punished  as  prescribed  in 

section  fifty-four  hundred  and  eighty-eight.     (See  sees.  3639, 

3651,  R.  S.) 

1  See  TJ.  S.  v  Gausseu,  19  Wall.,  198. 

-12 


178  THE   MILITARY  LAWS   OF   THE    UNITED   STATES. 

officers,  etc.,    5Q9.  Every  officer  of  the  United  States,  or  person  hold- 

interested  in 

clFebS26  1853  c  *D^  any  P^ace  °*  trust  or  profit,  or  discharging  any  official 

si,  s.  2,  v.  10,  'p.'  function  under,  or  in  connection  with,  any  Executive  De- 
sec.  5498,  R.  s.  partment  of  the  Government  of  the  United  States,  or  under 
the  Senate  or  House  of  Representatives  of  the  United 
States,  who  acts  as  an  agent  or  attorney  for  prosecuting 
any  claim  against  the  United  States,  or  in  any  manner,  or 
by  any  means,  otherwise  than  in  discharge  of  his  proper 
official  duties,  aids  or  assists  in  the  prosecution  or  support 
of  any  such  claim,  or  receives  any  gratuity,  or  any  share 
of  or  interest  in  any  claim  from  any  claimant  against  the 
United  States,  with  intent  to  aid  or  assist,  or  in  considera- 
tion of  having  aided  or  assisted,  in  the  prosecution  of  such 
claim,  shall  pay  a  fine  of  not  more  than  five  thousand  dol- 
lars, or  suffer  imprisonment  not  more  than  one  year,  or 
both.1 

officerteadcceptS  510<  Everv  officer  of  the  United  States,  and  every  per- 
sou  acting  f°r  or  on  behalf  of  the  United  States,  in  any 


184  Us1:6213;vr18i4  '  °  offici^  capacity  under  or  by  virtue  of  the  authority  of  any 
168i  Mir-  Vo  63<  department  or  office  of  the  Government  thereof  :  and  every 

c.  76,  s.6,  v.  12,  p.        r 

740;  July  18,^866,  officer  or  person  acting  for  or  on  behalf  of  either  House  of 
P.  we.  '  Congress,  or  of  any  committee  of  either  House,  or  of  both 

*  Houses  thereof,  who  asks,  accepts,  or  receives  any  money, 
or  any  contract,  promise,  undertaking,  obligation,  gratuity, 
or  security  for  the  payment  of  money,  or  for  the  delivery 
or  conveyance  of  anything  of  value,  with  intent  to  have 
his  decision  or  action  on  any  question,  matter,  cause,  or 
proceeding  which  may,  at  any  time,  be  pending,  or  which 
may  be  by  law  brought  before  him  in  his  official  capacity, 
or  in  his  place  of  trust  or  profit,  influenced  thereby,  shall 
be  punished  as  prescribed  in  the  preceding  section.    (See 
sec.  5451,  R.  S.) 

Officerfeiture  °f  ^**  Every  member,  officer,  or  person,  convicted  under 
^Feb.  26^i853,c.  the  provisions  of  the  two  preceding  sections,  who  holds 
i7i.  '  '  any  place  of  profit  or  trust,  shall  forfeit  his  office  or  place; 

*  and  shall  thereafter  be  forever  disqualified  from  holding 
any  office  of  honbr,  trust,  or  profit  under  the  United  States.1 

traS-ln61  be  omi  ^^'  ^verv  officer  of  the  Government  who  knowingly 
specific  appro-  contracts  for  the  erection,  repair,  or  furnishing  of  any  public 

priation.  ,      ..  ..  _  ,  ,.       . 

July  25,  1868,  c.  building,  or  for  any  public  improvement,  to  pay  a  larger 
233,  s.  3,  v.  15,  P.  amount  than  the  specific  sum  appropriated  for  such  pur  - 

Sec.  5508,  B.  s.  pOge^  snaji  |je  punished  by  imprisonment  not  less  than  six 
months  nor  more  than  two  years,  and  shall  pay  a  fine  of 
two  thousand  dollars.  (See  sec.  3733,  R.  S.) 

1  Section  5500,  above  referred  to,  but  here  omitted,  relates  to  the  offense  of  bribery 
when  committed  by  a  judge  of  a  court  of  the  United  States, 


THE   MILITARY   LAWS  OF  THE   UNITED   STATES. 


179 


COUNTERFEIT  MONEY. 


513,  That  all  United  States  officers  charged  with 
receipt  or  disbursement  of  public  moneys,  and  all  officers  u  counterfeit  "as 
of  national  banks,  shall  stamp  or  write  in  plain  letters  the 
word  " counterfeit,"  "  altered"  or  u  worthless,"  upon  all 
fradulent  notes  issued  in  the  form  of,  and  intended  to  cir- 
culate as  money,  which  shall  be  presented  at  their  places 
of  business;  and  if  such  officers  shall  wrongfully  stamp 
any  genuine  note  of  the  United  States,  or  of  the  national 
banks,  they  shall,  upon  presentation,  redeem  such  notes  at 
the  face- value  thereof.  Sec.  5,  act  of  June  30,  1876  (19 
Stat.  L.,  64). 

LOST  CHECKS— DUPLICATE  CHECKS. — BONDS. 


Par. 

515.  Examination  and  renewal  of 
bonds.  \ 


Par. 

514.  Check  lost,  stolen,  or  de- 
stroyed may  be  duplicated, 
but  not  for  sum  exceeding 

$2,500. 

514,  Whenever  any  original  check  is  lost,  stolen,  or    check  ^ 
destroyed,  disbursing  officers  and  agents  of  the  United  stroyed  'may  be 

,  duplicated,     but 

States  are  authorized,  after  the  expiration  of  six  months,  not  for  sum  ex- 
and  within  three  years  from  the  date  of  such  check,  to  ceJeb^e,2i885,'v. 
issue  a  duplicate  check ;  and  the  Treasurer,  assistant  treas-    sic.  3646,  B.  s. 
urers,  and  designated  depositaries  of  the  United  States 
are  directed  to  pay  such  duplicate  checks,  upon  notice  and 
proof  of  the  loss  of  the  original  checks,  under  such  regu- 
lations in  regard  to  their  issue  and  payment,  and  upon  the 
execution  of  such  bonds,  with  sureties,  to  indemnify  the 
United  States,  as  the  Secretary  of  the  Treasury  shall  pre- 
scribe.   This  section  shall  not  apply  to  any  check  exceed- 
ing in  amount  the  sum  of  twenty-five  hundred  dollars.i 
Act  of  February  16, 1895  (23  Stat.  L.,  306). 

In  case  the  disbursing  officer  or  agent  by  whom  such 
lost,  destroyed,  or  stolen  original  check  was  issued  is  dead, 
or  no  longer  in  the  service  of  the  United  States,  it  shall  12 
be  the  duty  of  the  proper  accounting  officer,  under  such 
regulations  as  the  Secretary  of  the  Treasury  shall  pre- 

1  The  following  paragraph  of  the  Army  Regulations  of  1895  prescribes  a  method 
of  procedure  in  the  case  of  a  check  which  has  been  lost  or  destroyed : 

"When  an  original  check  of  a  disbursing  officer,  not  exceeding  $2,500  in  amount, 
has  been  lost  or  destroyed,  a  duplicate  check  may  be  issued  by  him,  after  six  months 
and  within  three  years  of  the  date  of  the  original,  upon  the  owner  filing  with  him 
the  notice  and  proof  of  loss  and  the  indemnity  bond  required  by  sections  3646  and 
3647,  Revised  Statutes,  and  act  of  February  16,  1885.  In  case  the  disbursing  officer 
who  issued  the  original  check  is  no  longer  in  the  service,  the  notice  and  proof  of 
loss,  and  the  indemnity  bond  will  be  sent  to  the  Secretary  of  the  Treasury  prior  to 
the  issue  of  a  duplicate  check.  The  proper  accounting  officer  of  the  Treasury  will 
state  an  account  in  favor  of  the  owner  of  said  check  and  charge  the  amount  thereof 
to  the  account  of  such  officer.  Instructions  for  the  execution  and  use  of  the  affida- 
vit and  bond,  and  the  issue  of  the  duplicate  check,  accompany  the  blank  form  fur- 
nished by  the  Treasury  Department."  (Par.  599,  A,  It.,  1890.) 


180      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

scribe,  to  state  an  account  in  favor  of  the  owner  of  such 
original  check  for  the  amount  thereof,  and  to  charge  such, 
amount  to  the  account  of  such  officer  or  agent.1 

EXAMINATION  AND  RENEWAL  OF  BONDS. 

Examination     515.  Hereafter  every  officer  required  by  law  to  take  and 
bonds.  approve  official  bonds  shall  cause  the  same  to  be  examined 

672>  at  least  once  every  two  years  for  the  purpose  of  ascertain- 
ing the  sufficiency  of  the  sureties  thereon;  and  every  officer 
having  power  to  fix  the  amount  of  an  official  bond  shall 
examine  it  to  ascertain  the  sufficiency  of  the  amount 
thereof  and  approve  or  fix  said  amount  at  least  once  in 
two  years  and  as  much  oftener  as  he  may  deem  it  necessary. 
Hereafter  every  officer  whose  duty  it  is  to  take  and 
approve  official  bonds  shall  cause  all  such  bonds  to  be 
renewed  every  four  years  after  their  dates,  but  he  may 
require  such  bonds  to  be  renewed  or  strengthened  oftener 
if  he  deem  such  action  necessary.  In  the  discretion  of 
such  officer  the  requirement  of  a  new  bond  may  be  waived 
for  the  period  of  service  of  a  bonded  officer  after  the 
expiration  of  a  four-year  term  of  service  pending  the 
appointment  and  qualification  of  his  successor:  Provided, 
That  the  nonperformance  of  any  requirement  of  this  sec- 
tion on  the  part  of  any  official  of  the  Government  shall 
not  be  held  to  affect  in  any  respect  the  liability  of  principal 
or  sureties  on  any  bond  made  or  to  be  made  to  the  United 
States:  Provided  further,  That  the  liability  of  the  principal 
and  sureties  on  all  official  bonds  shall  continue  and  cover 
the  period  of  service  ensuing  until  the  appointment  and 
qualification  of  the  successor  of  the  principal:  And  pro- 
vided further,  That  nothing  in  this  section  shall  be  con- 
strued to  repeal  or  modify  section  thirty-eight  hundred 
and  thirty-six  of  the  Revised  Statutes  of  the  United  States. 
Sec.  5,  act  of  March  2,  1895  (28  Stat.  L.,  807). 

1  For  provisions  of  law  respecting  outstanding  checks  and  accounts  of  disbursing 
officers  which  have  remained  unchanged  1'or  three  years  see  paragraphs  219,  220,  and 
221,  ante. 


CHLAJPTER 


THE  ADJUTANT-GENEKAL'S  DEPARTMENT. 


Par. 

516.  The  Adjutant-General's  De- 

partment ;  composition. 

517.  Vacancies  to  be  filled  from 

the  line. 


Par. 

518.  To  act  as  assistant  inspectors- 

general.   . 

519.  Monthly  returns. 


516.  That  tlie  Adjutant-General's   Department  of  the    The  Adjutant- 
Army  shall  consist  of  one  Adjutant-General,  with  the  rank,  partment;  com- 
pay,  and  emoluments  of  brigadier- general;  four  assistant p°Feb°28, mi, v. 
adjutants  general,  with  the  rank,  pay,  and  emoluments  of  ISH  v*2s^>U2u! 
colonel ;  six  assistant  adjutants-general,  with  the  rank,  pay,    Sec* *     ' B' s' 
and  emoluments  of  lieutenant-colonel ;  and  four  assistant 
adjutants  general,  with  the  rank,  pay,  and  emoluments  of 
major :  Provided,  That  the  vacancies  in  the  grade  of  colonel 
and  lieutenant- colonel  created  by  this  act  shall  be  filled 
by  the  promotion  by  seniority  of  the  officers  now  in  the 
Adjutant  General's   Department.1    Acts  of  February  28, 
1887  (24  Stat.  L.,  424),  and  August  6,  1894  (28  Stat.  L.,  234}. 


1  The  organization  of  this  Department  as  fixed  in  section  1128,  Revised  Statutes, 
has  been  modified  by  the  acts  of  February  28,  1887  (24  Stat.  L.,  434),  and  August  6, 
1894  (28  Stat.  L.,  2:54).  The  last-named  statute  contains  the  provision  "that  there 
shall  be  no  appointment  of  assistant  adjutant-general  with  the  rank  of  major  until 
the  number  of  such  officers  in  that  grade  shall  be  reduced  below  four  and  thereaf- 
ter the  number  of  such  officers  in  that  grade  shall  be  fixed  at  four."  For  general 
provisions  respecting  appointments  and  promotions  in  this  Department,  see  the 
chapter  entitled  THE  STAFF  DEPARTMENTS. 

The  Adjutant-General's  Department  is  the  bureau  of  orders  and  records  of  the 
Army.  Orders  and  instructions  emanating  from  the  War  Department  or  Army 
Headquarters  and  all  general  regulations  are  communicated  to  troops  and  individuals 
in  the  military  service  through  the  Adjutant-General.  His  office  is  the  repository 
for  the  records  of  the  War  Department  which  relate  to  the  personnel  of  the  perma- 
nent military  establishment  and  militia  in  the  service  of  the  United  States,  to  the 
military  history  of  every  commissioned  officer  and  soldier  thereof,  and  to  the  move- 
ments and  operation  of  troops. 

The  records  of  all  appointments,  promotions,  resignations,  deaths,  and  other  cas- 
ualties in  the  Army,  the  preparation  and  distribution  of  commissions,  and  the 
compilation  and  issue  of  the  Army  Register  and  of  information  concerning  exami- 
nations for  appointment  and  promotion  pertain  to  the  Adjutant-General's  Office. 

The  Adjutant-General  is  charged,  under  the  direction  of  the  Secretary  of  War, 
with  the  management  of  the  recruiting  service,  the  collection  and  classification  of 
military  information  in  regard  to  our  own  and  foreign  countries,  the  preparation  of 
instructions  to  officers  detailed  to  visit  encampments  of  militia,  and  the  digesting, 
arranging,  and  preserving  of  their  reports;  also  the  preparation  of  the  annual 
returns  of  the  militia  required  by  law  to  be  submitted  to  Congress.  Requests  for 
military  information  which  require  action  on  the  part  of  any  military  attache  of  the 
United  States  will  be  made  to  the  Adjutant-General  of  the  Army.  (Par.  748, 
A.  R.,  1895.) 

In  the  Adjutant-General's  Office  the  names  of  all  enlisted  soldiers  are  enrolled, 
enlistments  and  descriptive  lists  filed,  deaths,  discharges,  desertions,  etc.,  recorded, 
the  general  returns  of  the  Army  consolidated,  returns  of  regiments  and  posts  and 
all  muster  rolls,  and  the  inventories  of  effects  of  deceased  officers  and  soldiers  pre- 
served. (Par.  749,  ibid.)  For  other  duties  pertaining  to  this  Department,  see  para- 
graphs 750-788  and  804-806,  A.  R.  of  1895. 

181 


182  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

frl^fheciiinelled  517t  A11  vacancies  in  the  grade  of  major,  in  the  Adjutant- 
200 Usy227V18i622' c'  General's  Department,  shall,  when  filled,  be  filled  by  selec- 
597';  Mar.  a,  1869,  tions  from  the  next  lowest  grade  in  the  line  of  the  Army. 

c.  124,  s.  6,  v.  15,  p. 

318;  Apr.  10, 1869,  res.  11,  v.  16,  p.  53 ;  Aug.  6, 1894,  v.  28,  p.  234.    Sec.  1129,  R.  S. 

TO  act  as  as-     518.  Assistant  adjutants-general  shall,  in  addition  to  their 

sistant  inspect-  J 

ors  general.        own  duties,  perform  those  of  assistant  inspectors-general, 

July  5,  1838,  c. 

162,  s.  7,  v.  5,  p  when  the  convenience  of  the  service  requires  them  to  do  so. 

257;  June  18, 1846, 

c.29,  s.  6,  v.  9,  p.  18;  Mar.  3,  1847,  c.  61,8.  2,  v.  9,  p.  184;  July  19, 1848  c. 

104,  8.  3,  v.  9,  p.  247 ;  Mar.  2, 1849,  c.  83,  s.  4,  v.  9,  p.  351.     Sec.  1130,  R.  S. 

RETURNS   OF   TROOPS. 

Monthly  re-  519.  Every  officer  commanding  a  regiment,  an  independ- 
7  Art.  war.  ent  troop,  battery,  or  company,  or  a  garrison,  shall,  in  the 
beginning  of  every  month,  transmit  through  the  proper 
channels,  to  the  Department  of  War,  an  exact  return  of 
the  same,  specifying  the  names  of  the  officers  then  absent 
from  their  posts,  with  the  reasons  for  and  the  time  of  their 
absence.  And  any  officer  who,  through  neglect  or  design, 
omits  to  send  such  returns,  shall,  on  conviction  thereof,  be 
punished  as  a  court-martial  may  direct.1  Seventh  article 
of  war. 

1  Commanders  of  departments,  corps,  and  posts  will  make  to  the  Adjutant-Gen- 
eral's Office,  in  Washington,  monthly  returns  of  their  respective  commands  on 
forms  furnished  by  the  Adjutant-General  of  the  Army,  and  in  accordance  with  the 
directions  printed  thereon.  In  like  manner  company  commanders  will  make  monthly 
returns  of  their  companies  to  regimental  headquarters.  (Par.  789,  A.  R.,  1895.) 

For  instructions  relating  to  the  preparation  of  monthly  returns  see  paragraphs 
789-798,  Army  Regulations,  1895. 


CHAPTER  XV. 


THE  INSPECTOR-GENERAL'S  DEPARTMENT. 


Par. 

520.  The   Inspector-General's  De- 

partment; composition. 

521.  Expert  accountant. 

522.  Inspections  of  public  works 

and  disbursements. 

523.  Limitation  on  mileage. 


Par. 

524.  Inspection  of  volunteer  sol- 

diers' homes. 

525.  Annual  inspection  of  military 

prison. 

526.  Inspectors-general  to   desig- 

nate articles  for  sale,  etc. 


520.  That  the  Inspector-General's   Department  of  the   inspector  Gen- 

eral  s    Dep art- 
Army  shall  hereafter  consist  of  one  Inspector- General,  with  ment. 

the  rank,  pay,  and  emoluments  of  brigadier-general;  two  23,  P.  297. 
inspectors-general,  with  the  rank,  pay,  and  emoluments  of 
colonel;  two  inspectors-general,  with  the  rank,  pay,  and 
emoluments  of  lieutenant-colonel ;  and  two  inspectors- gen- 
eral, with  the  rank,  pay,  and  emoluments  of  major:  Pro- 
vided, That  the  offices  restored  to  the  Inspector- General's 
Department,  or  added  thereto,  by  this  act,  shall  be  filled 
by  promotion  of  the  officers  now  in  that  department;  and 
that  thereafter  appointments  to  fill  vacancies l  in  the  In- 

JThe  rank  of  brigadier-general  was  conferred  upon  the  senior  Inspector-General 
by  the  act  of  December  12,  1878  (20  Stat.  L.,  257).  Vacancies  in  this  department 
are  filled  by  selection  from  the  next  lowest  grade  in  the  line  of  the  Army.  The 
organization  prescribed  for  this  department  in  section  1131,  Revised  Statutes,  as 
modified  by  the  act  of  June  23, 1874  (18  Stat.  L.,  244),  was  replaced  by  the  act  of  Feb- 
ruary 5,  1885,  above  cited.  Act  of  August  6, 1894  (28  Stat.  L.,  234).  The  act  of  June 
23, 1874  (18  Stat.  L.,  244),  contained  a  provision  authorizing  the  Secretary  of  War  to 
"detail  officers  of  the  line,  not  to  exceed  four,  to  act  as  assistant  inspectors-general: 
Provided,  That  officers  of  the  line  detailed  as  acting  inspectors-general  shall  have 
all  the  allowances  of  cavalry  officers  of  their  respective  grades." 

For  general  provisions  respecting  appointments  and  promotions  in  this  depart- 
ment see  the  chapter  entitled  THE  STAFF  DEPARTMENTS 

The  duties  of  inspectors-general  are  defined  in  the  following  paragraphs  of  the 
Army  Regulations  of  1895: 

Officers  of  the  Inspector-General's  Department  will  inspect  once  in  each  year  all 
military  commands,  garrisoned  posts,  and  camps,  and  once  in  two  years  such  ungar- 
risoued  posts  and  national  cemeteries  as  can  be  visited  without  departing  materially 
from  the  routes  of  other  prescribed  inspections.  (Par.  867,  A.  R.,  1895.) 

Inspections  of  the  Military  Academy  will  be  made  only  under  specific  instructions 
given  in  each  case  by  the  Secretary  of  War,  and  inspections  of  the  service  schools, 
in  so  far  as  they  are  distinct  from  posts,  under  similar  instructions  given  by  the 
Secretary  of  War  or  the  Commanding  General  of  the  Army.  (Par.  869,  ibid.) 

The  military  department  of  civil  institutions  of  learning  at  which  officers  of  the 
Army  are  detailed  will  be  inspected  annually,  near  the  close  of  the  college  year, 
uuder  specific  instructions.  The  inspecting  officer,  upon  his  arrival  at  the  institu- 
tion, will  apply  to  the  president  or  the  administrative  officer  thereof  for  such  aid  or 
facilities  as  he  may  require.  His  report  will  be  sent  to  the  Inspector-General  of  the 
Army,  then  to  the  Adjutant-General  of  the  Army  for  note  and  return,  and  a  copy 
furnished  the  president  of  the  institution  by  the  War  Department.  (Par.  870,  ibid.) 

The  sphere  of  inquiry  of  the  Inspector-General's  Department  includes  every 
branch  of  military  affairs  except  when  specially  limited  in  these  regulations  or  in 
orders.  Inspectors-general  and  acting  inspectors-general  will  exercise  a  comprehen- 
sive and  general  observation  within  their  respective  districts  over  all  that  pertains 
to  the  efficiency  of  the  Army,  the  condition  and  state  of  supplies  of  all  kinds,  of 
arms  and  equipments,  of  the  expenditure  of  public  property  and  moneys,  and  the 
condition  of  accounts  of  all  disbursing  officers  of  every  branch  of  the  service;  of 

183 


184 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


Expert 
countant. 


public  works  and 
disbursem  ents . 

Apr.  20, 1874,  v 
18,  p.  33. 


spector-GeneraPs  Department,  and  promotions  therein, 
shall  be  made  in  conformity  with  sections  eleven  hundred 
and  twenty-nine,  eleven  hundred  and  ninety-three,  and 
twelve  hundred  and  four  of  the  Revised  Statutes  of  the 
United  States,  and  in  the  same  manner  as  in  the  other 
staff  departments  of  the  Army.  And  all  laws  or  parts  of 
laws  conflicting  with  this  act  are  hereby  repealed.  Act 
of  February  5, 1885  (23  Stat.  L.,  297}. 

521.  For  pay  of  one  expert  accountant  for  the  Inspector- 
26Feb7Vl4>  1891>v'  General's  Department,  to  be  appointed  in  case  of  vacancy, 
by  the  Secretary  of  War,  two  thousand  five  hundred  dol- 
lars. l  Act  of  February  24,  1891  (26  Stat.  L.,  773). 
inspections  of  522.  That  it  shall  be  the  duty  of  the  Secretary  of  War 
to  cause  frequent  inquiries  to  be  made  as  to  the  necessity, 
economy,  and  propriety  of  all  disbursements  made  by 
disbursing  officers  of  the  Army,  and  as  to  their  strict  con- 
formity to  the  law  appropriating  the  money;  also  to  ascer- 
tain whether  the  disbursing  officers  of  the  Army  comply 
with  the  law  in  keeping  their  accounts  and  making  their 
deposits ;  such  inquiries  to  be  made  by  officers  of  the  Inspec- 
tion Department  of  the  Army,  or  others  detailed  for  that 
purpose :  Provided,  That  no  officer  so  detailed  shall  be  in 
any  way  connected  with  the  department  or  corps  making 
Reports  of  in- the  disbursement.  That  the  reports  of  such  inspections 
^jj  ^e  made  out  and  forwarded  to  Congress  with  the 
annual  report  of  the  Secretary  of  War.2  Sees  1  and  2,  act 
of  April  20,  1874  (18  Stat.  L.,  33). 

the  conduct,  discipline,  and  efficiency  of  officers  and  troops,  and  report  with  strict 
impartiality  in  regard  to  all  irregularities  that  may  be  discovered.  From  time  to  time 
they  will  make  such  suggestions  as  may  appear  to  them  practicable  for  the  cure  of 
any  defect  that,  may  come  under  their  observation.  (Par.  857,  ibid.) 

Inspectors-general  and  acting  inspectors-general  are  under  the  orders  of  the  Sec- 
retary of  War  and  the  Commanding  General  of  the  Army  only,  and  all  orders  not 
confidential  will  be  issued  from  the  Adjutant-General's  Office  and  transmitted  to 
them  through  the  Inspector-General  of 'the  Army.  They  will  make  the  general 
inspections  within  the  limits  of  their  respective  districts,  and  will  each  be  allowed 
the  necessary  clerks  and  one  messenger,  who  will  be  assigned  by  the  Secretary  of 
War.  (Par.  858.  ibid.) 

See  also  paragraphs  859-866, 872-875.  and  878-889,  A.  R.,  1895. 

1  For  statutory  provisions  respecting  the  mileage  of  this  officer  see  the  act  of  Feb- 
ruary 27,  1893  (27  Stat.  L.,  430).  Par.  634,  post. 

2  INSPECTIONS  OF  PUBLIC  WORKS   AND  DISBURSEMENTS. 

The  inspection  contemplated  in  this  provision  is  that  required  by  the  act  of  April 
20, 1874  (18  Stat.  L..  33).  See  also  Chapter  XLI,  entitled  THE  NATIONAL  HOME  FOR 
DISABLED  VOLUNTEER  SOLDIERS. 

All  depots,  armories,  arsenals,  and  public  works  of  every  kind  under  charge  of 
officers  of  the  Army,  except  works  of  engineering  conducted  under  the  direction 
of  the  Secretary  of  War  and  supervision  ot  the  Chief  of  Engineers,  will  be  inspected 
annually  by  officers  of  the  Inspector-General's  Department.  These  inspections  will 
include  military  and  business  administration  and  methods,  but  will  not  extend  to  the 
scientific  or  technical  character  of  work,  for  which  the  officer  in  charge  is  responsible, 
through  the  head  of  his  department,  to  the  Secretary  of  War.  (Par.  808,  A.  R.,  1895.) 

Inspectors  general  and  acting  inspectors-general  will  inquire  as  to  the  necessity, 
economy,  and  propriety  of  all  disbursements,  their  strict  conformity  to  the  law  appro- 
priating the  money,  and  whether  the  disbursing  officers  comply  with  the  law  in 
keeping  their  accounts  and  making  their  deposits.  A  statement  of  receipts  and 
expenditures  and  of  the  distribution  of  funds,  with  a  list  of  outstanding  checks,  on 
forms  furnished  by  the  Inspector-General  of  the  Army,  will  be  submitted  by  the 
disbursing  officer  to  the  inspector,  who  should  immediately  transmit  the  list  of  out- 
standing checks  to  the  several  depositories.  Upon  return  from  a  depository,  balances 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  185 

523.  Hereafter  no  portion  of  the  appropriation  for  mile- mi^itation  on 
age  to  officers  traveling  on  duty  without  troops  shall  be  28AuKj  '•  1894« v- 
expended  for  inspections  or  investigations,  except  such  as 

are  especially  ordered  by  the  Secretary  of  War,  or  such 
as  are  made  by  Army  and  department  commanders  in  visit- 
ing their  commands,  and  those  made  by  Inspector-General's 
Department  m  pursuance  of  law,  Army  regulations,  or 
orders  issued  by  the  Secretary  of  War  or  the  Commanding 
General  of  the  Army;  and  all  orders  involving  the  pay- 
ment of  mileage  shall  state  the  special  duty  enjoined.  Act 
of  August  6,  1894  (28  Stat.  L.,  237). 

524.  The  Secretary  of  War  shall  hereafter  exercise  the    inspection  of 

„  .     ,  ,     ,.    ,  volunteer    sol- 

same  supervision  over  all  receipts  and  disbursements  on  diers' homes, 
account  of  the  volunteer  soldiers7  homes  as  he  is  required  27,  p&653.' 
by  law  to  apply  to  the  accounts  of  disbursing  officers  of  the 
Army.1    Act  of  March  3,  1893  (27  Stat.  L.,  653). 

525.  One  of  the  inspectors-general  of  the  Army  shall,  at  tio 
least  once  each  year,  visit  the  prison  for  the  purpose  of  P^son.  19 
examining  into  the  books  and  all  the  affairs  thereof,  and  v.  26,  p.  722. 
ascertaining    whether    the  laws,  rules,  and  regulations 
relating  thereto  are  complied  with,  the  officers  are  compe- 
tent and  faithful,  and  the  convicts  properly  governed  and 
employed,  and  at  the  same  time  treated  with  humanity  and 
kindness.    And  it  shall  be  the  duty  of  the  inspector,  at 

once,  to  make  full  report  thereof  to  the  Secretary  of  War. 

526.  The  officers  of  the  Subsistence  Department  shall  eSTdeTgK 
procure,  and  keep  for  sale  to  officers  and  enlisted  men  at  jjj*cle8  for  8ale> 
cost  prices,  for  cash  or  on  credit,  such  articles  as  may,  from  18f|c;2^Julf3|8t 
time  to  time,  be  designated  by  the  inspectors-general  of   se'c.ii44,'R.s. 
the  Army.     An  account  of  all  sales  on  credit  shall  be  kept, 

and  the  amounts  due  for  the  same  shall  be  reported  monthly 
to  the  Paymaster-General.  See  sections  1299  and  1300, 
Rev.  Stat.  (paragraphs  659  and  660,  post). 

will  be  verified  and  noted  on  the  inspection  report,  which  will  then  be  forwarded 
to  the  Inspector-General.  The  list  of  outstanding  checks  will  be  retained  by  the 
inspector  and  a  copy,  with  indorsements  thereon,  sent  to  the  Inspector-General. 
(Par.  876.  ibid.) 

When  an  officer  ceases  to  act  as  a  disbursing  officer,  he  will  submit  to  the  officer  to 
whom  the  inspection  pi  his  accounts  has  been  assigned  a  statement  of  his  money 
accounts  from  date  of  last  inspection  to  and  including  the  closing  of  his  accounts, 
with  a  list  of  outstanding  checks.  If  an  inspection  be  impracticable,  the  statement 
will  be  forwarded  to  the  Inspector-General  of  the  Army.  (Par.  877,  ibid.) 

The  inspection  of  disbursements  and  money  accounts  of  disbursing  officers  re- 
quired by  act  of  April  20, 1874,  will  be  made  by  officers  of  the  Inspector-General's 
Department  or  others  detailed  for  that  purpose,  and,  as  far  as  practicable,  at  irregu- 
lar intervals ;  but  no  officer  so  detailed  shall  be  in  any  way  connected  with  the  corps 
oi  staff  department  making  the  disbursement.  The  frequency  of  these  inspections 
will  be  regulated  by  the  Secretary  of  War.  (Par.  871,  ibid.) 

'Section  2  of  the  act  of  March  3,  1883  (22  Stat.  L.,  564),  requires  the  Inspector- 
General,  in.  peraon,  to  make  an  annual  inspection  of  the  Home.  (See  par.  1719,  post.) 


CHAJPTER 


THE  JUDGE-ADVOCATE  GENERAL'S  DEPART- 
MENT. 


Par. 

527.  The  Judge  -  Advocate  r  G  e  n  - 

eral's  Department;  compo- 
sition. 

528.  Promotions;  how  made. 

529.  Duties    of  the  Judge- Advo- 

cate-General. 

530.  Duties  of  judge- advocates. 


Par. 

531.  Judge-advocates  of    depart- 

ments and  of  courts-martial 
may  administer  oaths  for 
certain  purposes. 

532.  Disposition  of  proceedings  of 

certain  minor  courts-mar- 
tial. 


Ad  vocation 
mint- 

U  jnuiy  5  1884 
23,  p.  us! 


Prom  otions 
how  made. 
Sec.  2,  ibid. 


General. 
Sec. 


527'  That  the  Bui>eau  of  Military  Justice1  and  the  corps 
°^  judge-advocates  of  the  Army  be,  and  the  same  are 
hereby,  consolidated  under  the  title  of  Judge-  Ad  vocate- 
General's  Department  5  and  shall  consist  of  one  Judge- 
Advocate-General  with  the  rank,  pay,  and  allowances  of 
a  brigadier-  general  5  one  assistant  judge-  advocate-  general, 
with  the  rank,  pay,  and  allowances  of  a  colonel;  three 
deputy  judge-advocate-generals,  with  the  rank,  pay,  and 
allowances  of  lieutenant-colonels;  and  three  judge-advo- 
cates, with  the  rank,  pay,  and  allowances  of  majors;  the 
colonel  and  lieutenant-colonels  to  be  selected  by  seniority 
from  the  present  corps  of  judge-advocates.  And  the  Sec- 
retary of  War  is  hereby  authorized  to  detail  such  number 
of  officers  of  the  line  as  he  may  deem  necessary  to  serve 
as  acting  judge-  advocates  of  military  departments,  who 
shall  have  while  on  such  duty  the  rank,  pay,  and  allow- 
ances of  captains  of  cavalry.  Act  of  July  5,  1884  (23  Stat. 
L.,  113). 

528.  Promotions  in  the  Judge-  Advocate-  General's  De- 
partment, as  provided  in  the  first  section  of  this  act,  shall 
be  by  seniority  up  to  and  including  the  rank  of  colonel.2 
Sec.  2,  ibid. 

529<  The  Judge-Advocate-  General  shall  receive,  revise 
ail(j  cause  to  be  recorded  the  proceedings,  of  all  courts- 

,  n.  ». 

martial,  courts  of  inquiry,  and  military  commissions,  and 

1  Sections  1198  and  1200  of  the  Revised  Statutes  and  section  2  of  the  act  of  June  23, 
1874  (18  Stat.  L.,  244),  were  replaced  by  the  act  of  July  5,  1884  (23  Stat.  L.,  117),  which 
merged  the  Bureau  of  Military  Justice  and  the  corps  of  judge-advocates  in  the  Judge- 
Advocate-General's  Department,  created  by  that  statute. 

2  Section  3  of  this  act  contains  the  provision  that  nothing  herein  shall  be  construed 
to  interfere  with  the  rank  or  position  of  any  officer  now  holding  a  commission  in 
either  the  Bureau  of  Military  Justice  or  corps  of  judge-advocates. 

186 


THE  MILITARY  LAWS   OF  THE   UNITED   STATES.  187 

perform  such  other  duties  as  have  been  performed  hereto- 
fore by  the  Judge-  Advocate-General  of  the  Army.1 

530.  Judge-advocates   shall  perform  their  duties  under    Duties   of 
the  direction  of  the  Judge-  Advocate-  General. 

531.  That  judge-advocates  of  departments  and  of  courts-    Ju  & 


martial,  and  the  trial  officers  of  summary  courts,  are  hereby  men  1 
authorized  to  administer  oaths  for  the  purposes  of  military  may r  administer 
justice,  and  for  other  purposes  of  military  administration. oat^8  for  certam 


Sec.  4,  act  of  July  27,  1892  (27  Stat.  L.,  278.) 

532.  That  hereafter  the  records  of  regimental,  garrison, 
and  field  officers  [and]  courts-martial  shall  after  having  certain  minor 

_  nL          /.        ,          -i    /»,     -i   •      ,-,        -r     i          A   -i          courts  martial. 

been  acted  upon,  be  retained  and  filed  in  the  Judge-  Ad  vo-    Mar.  3,  is??, 
cate's  office  at  the  Headquarters  of  the  Department  Com-19'p'310' 
mander,  in  whose  department  the  courts  were  held,  for  two 
years,  at  the  end  of  which  time  they  may  be  destroyed. 
Act  of  March  5,  1877  (19  Stat.  L.,  310). 

JTho  work  done  in  his  office  and  for  which  this  officer  is  responsible  consists 
mainly  of  the  following  particulars:  Reviewing  and  making  reports  upon  the  pro- 
ceedings of  trials  by  court-martial  of  officers,  enlisted  men,  and  cadets,  and  the 
proceedings  of  courts  of  inquiry;  making  reports  upon  applications  for  pardon  or 
mitigation  of  sentence  ;  preparing  and  revising  charges  and  specifications  prior  to 
trial,  and  instructing  judge-advocates  in  regard  to  the  conduct  of  prosecutions; 
drafting  of  contracts,  bonds,  etc.  ;  as  also  for  execution  by  the  Secretary  of  War 
of  deeds,  leases,  licenses  (see  License),  grants  of  rights  of  way,  approvals  of  loca- 
tion of  rights  of  way,  approvals  of  plans  of  bridges  and  other  structures,  notices  to 
alter  bridges  as  obstructions  to  navigation,  etc.;  framing  of  bills,  forms  of  pro- 
cedure, etc.  ;  preparing  of  opinions  upon  questions  relating  to  the  appointment, 
promotion,  rank,  pay,  allowances,  etc.,  of  officers,  enlisted  men,  etc.,  and  to  their 
amenability  to  military  jurisdiction  and  discipline;  upon  the  civil  rights,  liabilities, 
and  relations  of  military  persons  and  the  exercise  of  the  civil  jurisdiction  over  them; 
upon  the  employment  of  the  Army  in  execution  of  the  laws;  upon  the  discharge 
of  minors,  deserters,  etc.,  on  habeas  corpus;  upon  the  administration  of  military 
commands,  the  care  and  government  of  military  reservations,  and  the  extent  of 
the  United  States  and  State  jurisdictions  over  such  reservations  or  other  lands  of  the 
United  States;  upon  the  proper  construction  of  appropriation  acts  and  other  stat- 
utes; upon  the  interpretation  and  effect  of  public  contracts  between  the  United 
States  and  individuals  or  corporations  ;  upon  the  validity  and  disposition  of  the 
varied  claims  against  the  United  States  presented  to  the  War  Department;  upon 
the  execution  of  public  works  under  appropriations  by  Congress  ;  upon  obstructions 
to  navigation  as  caused  by  bridges,  dams,  locks,  piers,  harbor  lines,  etc.;  upon  the 
riparian  rights  of  the  United  States  and  of  States  and  individuals  on  navigable 
waters,  etc.  ;  and  the  furnishing  to  other  Departments  of  the  Government  of  state- 
ments and  information  apposite  to  claims  therein  pending,  and  to  individuals  of 
copies  of  the  records  of  their  trials  under  the  one  hundred  and  fourteenth  article  of 
war.  The  matter  of  the  submitting  to  the  Judge-  Advocate-General  of  applications 
for  opinions  is  regulated  by  paragraph  852,  Army  Regulations. 

The  Judge-  Advocate-General's  Department  is  the  Bureau  of  Military  Justice. 
The  Judge-Advocate-General  is  the  custodian  of  the  records  of  all  general  courts- 
martial,  courts  of  inquiry,  and  military  commissions,  and  of  all  papers  relating  to 
the  title  of  lands  under  the  control  of  the  War  Department,  except  the  Washington 
Aqueduct  and  the  public  buildings  and  grounds  in  the  District  of  Columbia.  The 
officers  of  this  department  render  opinions  upon  legal  questions  when  called  upon 
by  proper  authority  .  (Par.  890,  A.  R.,  1895.) 

The  original  proceedings  of  all  general  courts-martial,  courts  of  inquiry,  and  mili- 
tary commissions,  with  the  decisions  and  orders  of  the  reviewing  authorities  made 
thereon,  and  the  proceedings  of  all  general  courts-martial,  courts  of  inquiry,  and 
military  commissions  which  require  the  confirmation  of  the  President,  but  which 
have  not  been  appointed  by  him,  will  be  forwarded  direct  to  the  Judge-Advocate- 
Geueral.  One  copy  of  the  order  promulgating  the  action  of  the  court  and  a  copy  of 
every  subsequent  order  affecting  the  case  will  be  forwarded  to  the  Judge-Advocate- 
General,  with  the  record  of  each  case.  When  more  than  one  case  is  embraced  in  a 
single  order,  a  sufficient  number  of  copies  will  be  forwarded  to  enable  one  to  be  filed 
with  each  record.  The  proceedings  of  all  courts  and  military  commissions  appointed 
by  the  President  will  be  sent,  direct  to  the  Secretary  of  War.  (Par.  892,  A.  R.,  1895.) 

Applications  of  officers,  enlisted  men,  and  military  prisoners  tor  copies  of  proceed- 
ings of  general  courts-martial,  to  be  furnished  them  under  the  one  hundred  and 
fourteenth  article  of  war,  will,  when  received  by  post  or  other  commanders,  be 
forwarded  direct  to  the  Judge  Advocate-General.  (Par.  894,  A.  R.,  1895.) 

Communications  relating  to  proceedings  of  military  courts  on  file  in  the  Judge- 
Advocate-General's  Department  will  be  addressed  .and  forwarded  direct  by  depart- 
ment, commanders  to  the  Judge  Advocate-General.  In  routine  matters  the  Judge- 
Advocate  General  and  judge-  advocates  may  correspond  with  each  other  direct.  (Par. 
895.  A.  R.,  1895.) 

The  reports  which  the  Judge-  Advocate-General  may  render  upon  cases  received  by 
him,  and  which  require  the  action  of  the  President,  will  be  addressed  to  the  Secretary 
of  War  and  will  be  forwarded,  through  the  Commanding  General  of  the  Army,  for 
such  remarks  and  recommendationsaa  he  may  Bee  lit  to  make.  (Par.  896,  A.  R.,  1895.) 


CHLAJPTER 


THE  QUARTERMASTER'S  DEPARTMENT. 


Par. 

533.  The  Quartermaster's  Depart- 

ment; composition. 

534.  Military  storekeepers. 

535.  Duties. 

536.  Kind  and  amount  of  supplies 

to  be  prescribed  by  Secre- 
tary of  War. 

537.  Subsistence  duty  of  assistant 

quartermasters. 

538.  Post    quartermaster   ser- 

geants. 

539.  Procurement  of  supplies. 

540.  Purchases ;  how  made ;  emer- 

gency purchases. 

541.  Expenses    of   bakeries,   post 

schools,  messes,  etc. 

542.  Post  gardens  and  exchanges. 

543.  Printing. 

544.  Transportation  of  troops. 

545.  Transportation    in    kind    to 

officers. 

546.  Limit  to  number  of  pack  ani- 

mals ;     transportation     of 
stores  by  contract. 

547.  Means  of  transportation  to  be 

procured  by  contract. 

548.  Cavalry  and  artillery  horses 

to  be  procured  by  contract ; 
inspection. 

549.  Limit  as  to  number  of  horses 

for  mounted  service. 

550.  Supplies  to  naval  and  marine 

detachments. 

551.  Property  for  Government  sur- 

veys,    National     Museum, 
etc.,  to  be  transported. 

552.  Payments  to  land-grant  rail- 

roads. 


Par. 

553.  Number    of    civilian     em- 

ployees limited. 

554.  Salaries    of    civilian    em- 

ployees. 

555.  Extra  duty ;  rates  of  pay. 

556.  Details  to  be  in  writing. 

557.  Details    in    the    field;    how 

made. 

558.  Rates  of  extra-duty  pay 

559.  Allowance   of   fuel   and  for- 

age. 

560.  No  discrimination  in  issues  of 

forage  to  officers    serving 
east  of  Mississippi  River. 

561.  Purchases  of  clothing. 

562.  Uniform  to  be  prescribed  by 

President. 

563.  Clothing  allowances. 

564.  Clothing  balances;  how  pay- 

able. 

565.  Gratuitous  issues. 

566.  Selling  or  spoiling  clothing 

etc. ;  penalty. 

567.  Altering  clothing. 

568.  Limit  of  cost. 

569.  Permanent  barracks. 

570.  Limit  on  expenditures. 

571.  Quarters  in  kind  to  be  fur- 

nished to  officers. 

572.  Officers  temporarily  absent  in 

the  field  not  to  lose  right  to 
quarters. 

573.  Returns  of  clothing  and  equi- 

page. 

574.  Uniforms  and  equipments  not 

to    be  sold,    bartered,   ex- 
changed, loaned,  etc. 


533.  That  the  Quartermaster's  Department  of  the  Army 
com-  shall  hereafter  consist  of  the  Quartermaster-General,  with 

position.  ^ 

i8Ma339' 1875t  v'  ^e  rank>  I)ay  an(i  emoluments  of  a  brigadier-general;  four 
sec.  ii32,R.s.  assistant  quartermaster's-general,  with  the  rank,  pay  and 

188 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  189 

emoluments  of  colonels  of  cavalry;  eight  deputy-quarter- 
masters general,  with  the  rank,  pay  and  emoluments  of 
lieutenant-colonels  of  cavalry;  fourteen  quartermasters, 
with  the  rank,  pay  and  emoluments  of  majors  of  cavalry; 
and  thirty  assistant  quartermasters,  with  the  rank,  pay 
and  emoluments  of  captains  of  cavalry.1  Sec.  1,  act  of 
March  3,  1875  (18  Stat.  L.,  339). 

534  That  no  more  appointments  shall  be  made  in  the  ^^^  8tore" 
grade  of  military  storekeepers  in  the  Quartermaster's  De-  18MaJgi'  1875'  v- 
partment,  and  this  grade  shall  cease  to  exist  as  soon  as  the 
same  becomes  vacant  by  death,  resignation,  or  otherwise 
of  the  present  incumbents.2    Sec.  2,  act  of  March  5,  1875 
(18  Stat.  L.,  339). 

535.  It  shall  be  the  duty  of  the  officers  of  the  Quarter-    Duties. 
master's  Department,  under  the  direction  of  the  Secretary  46,  88*3,  5,V.  2,  pp! 


of  War,  to  purchase  and  distribute  to  the  Army  all  military  1342,  c. 
stores  and  supplies,  requisite  for  its  use,  which  other  corps  isS/ 
are  not  directed  by  law  to  provide;  to  furnish  means  of^&J 
transportation  for  the  Army,  its  military  stores  and  sup- 
plies, and  to  provide  for  and  pay  all  incidental  expenses 
of  the  military  service  which  other  corps  are  not  directed 
to  provide  for  and  pay. 
536.  The  Secretary  of  War  shall  from  time  to  time  define    K  i  n  d    a  n  d 

amount  of  sup- 

and  prescribe  the  kinds  as  well  as  the  amount  of  supplies  p^es  to  be  pre- 
to  be  purchased  by  the  Subsistence  and  Quartermaster  retary  of  warec 

,     ,  .          ,     ,  .  ,  Mar.  3,  1813   c. 

Departments  of  the  Army,  and  the  duties  and  powers  48,  s.  5,  v.  2,  p.  SIT. 
thereof  respecting  such  purchases;  and  shall  prescribe 
general  regulations  for  the  transportation  of  the  articles 
of  supply  from  the  places  of  purchase  to  the  several  armies, 
garrisons,  posts,  and  recruiting  places,  for  the  safe-keeping 
of  such  articles,  and  for  the  distribution  of  an  adequate 
and  timely  supply  of  the  same  to  the  regimental  quarter- 
masters, and  to  such  other  officers  as  may  by  virtue  of  such 
regulations  be  intrusted  with  the  same;  and  shall  fix  and 
make  reasonable  allowances  for  the  store  rent  and  storage 
necessary  for  the  safe-keeping  of  all  military  stores  and 
supplies. 

'The  Quartermaster-General  is  appointed  by  selection  from  the  officers  of  the 
Department.  For  general  provisions  respecting  promotions  and  appointments  in 
this  Department  and  for  provision  as  to  the  performance  of  the  duties  of  the  office 
during  the  absence  of  the  Quartermaster-General  see  the  chapter  entitled  THE  STAFF 
DEPARTMENTS.  Vacancies  in  the  lowest  grade  in  this  Department  are  filled  by  selec- 
tion from  the  next  lower  grade  in  the  line  of  the  Army.  This  clause  operates  to 
repeal  the  reqxiirements  of  section  1132,  Revised  Statutes,  that  all  appointments  in 
the  Quartermaster's  Department  shall  bo  made  from  the  Army,  and  a  similar  pro- 
vision of  the  act  of  March  3,1883  (22  Stat.  L.,  457),  authorizing  the  appointment  of 
officers  from  civil  life.  (Act  of  August  6,  1894,  28  Stat.  L.,  234.) 

sThe  acts  of  June  23,  1874,  March  3,  1875,  and  June  26,  1876,  reorganizing  the  staff 
corps,  provide  "that  no  officer  now  in  service  shall  be  reduced  in  rank  or  mustered 
out  by  reason  of  any  provisions  of  law  therein  made  reducing  the  number  of  officers 
in  any  department  or  corps  of  the  Army."  There  are  now  in  service,  in  excess  of 
the  number  allowed  by  these  acts,  three  ordnance  storekeepers,  two  majors,  and  one 
captain,  in  the  Ordnance  Department.  This  grade,  having  become  vacant,  has 
ceased  to  exist  as  a  grade  of  rank  in  the  Quartermaster's  Department. 


190  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


uossan  quartermasters  shall  do  duty  as  assistant 

quartermasters,  commissaries  of  subsistence  wheu  so  ordered  by  the  Secre- 

See*  1  1  »>  1  ,  K.  S. 

tary  of  War. 

POST   QUARTERMASTER  SERGEANTS. 

rua8reerr-     538>  That  the  Secretary  of  War  is  authorized  to  appoint, 
1884  v  on  *ue  recommendation  of  the  Quartermaster-General,  as 
23,  p.  log.'  many  post  quartermaster  sergeants,  not  to  exceed  eighty, 

as  he  may  deem  necessary  for  the  interests  of  the  service, 
said  sergeants  to  be  selected  by  examination  from  the  most 
competent  enlisted  men  of  the  Army  who  have  served  at 
least  four  years,  and  whose  character  and  education  shall 
fit  them  to  take  charge  of  public  property  and  to  act  as 
clerks  and  assistants  to  post  and  other  quartermasters. 
Said  post  quartermaster  sergeants  shall,  so  far  as  practi- 
cable, perform  the  duties  of  storekeepers  and  clerks,  in  lieu 
of  citizen  employees.  The  post  quartermaster  sergeants 
shall  be  subject  to  the  rules  and  articles  of  war  and  shall 
receive  for  their  services  the  same  pay  and  allowances  as 
ordnance  sergeants.  l  Act  of  July  5,  1884  (23  Stat.  L.,  109). 

THE   PROCUREMENT   OF   SUPPLIES.2 

Procurement     539.  The  Quartermaster's  Department  of  the  Army,  in 

°fsec?37i6,'  R.  s.  obtaining  supplies  for  the  military  service,  shall  state  in  all 

advertisements  for  bids  for  contracts  that  a  preference  shall 

be  given  to  articles  of  domestic  production  and  manufac- 

ture, conditions  of  price  and  quality  being  equal,  and  that 

such  preference  shall  be  given  to  articles  of  American  pro- 

duction and  manufacture  produced  on  the  Pacific  Coast,  to 

the  extent  of  the  consumption  required  by  the  public  serv- 

ice there.    In  advertising  for  Army  supplies  the  Quarter- 

master's Department  shall  require  all  articles  which  are  to 

be  used  in  the  States  and  Territories  of  the  Pacific  Coast 

to  be  delivered  and  inspected  at  points  designated  in  those 

States  and  Territories  ;  and  the  advertisements  for  such  sup- 

plies shall  be  published  in  newspapers  of  the  cities  of  San 

Francisco,  in  California,  and  Portland,  in  Oregon. 

Purchases;     540.  That  hereafter  all  purchases  of  regular  and  miscel- 

^En^gencylaneous  supplies  for  the  Army  furnished  for  the  Quarter- 

Pljuibya5e8i884,  v.  masters  Department  and  by  the  Commissary  Department, 

23,  p.  109.  for  immediate  use,  shall  be  made  by  the  officers  of  such 

department,  under  the  direction  of  the  Secretary  of  War, 

1  For  corps  of  Army  service  men,  see  chapter  entitled  THE  MILITARY  ACADEMY. 

2  For  general  provisions  on  this  subject,  see  the  chapter  entitled  CONTRACTS  AND 
PURCHASES  ;  see  also,  for  expenditures  upon  building  at  military  posts,  the  chapter 
entitled  THE  PUBLIC  LANDS,  MILITARY  RESERVATIONS,  AND  MILITARY  POSTS.    See, 
also,  in  respect  to  the  construction  of  buildings  at  military  posts,  paragraphs  569 
and  570,  pott. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  191 

at  the  places  nearest  the  points  where  they  are  needed,  the 
conditions  of  cost  and  quality  being  equal:  Provided  also, 
That  all  purchases  of  said  supplies,  except  in  cases  of 
emergency,  which  must  be  at  once  reported  to  the  Secre- 
tary of  War  for  his  approval,  shall  be  made  by  contract 
after  public  notice  of  not  less  than  ten  days  for  small 
amounts  for  immediate  use,  and  of  not  less  than  from 
thirty  to  sixty  days  whenever,  in  the  opinion  of  the  Secre- 
tary of  War,  the  circumstances  of  the  case  and  conditions 
of  the  service  shall  warrant  such  extension  of  time.  The 
award  in  every  case  shall  be  made  to  the  lowest  responsi- 
ble bidder  for  the  best  and  most  suitable  article,  the  right 
being  reserved  to  reject  any  and  all  bids.1  Act  of  July  5, 
1884  (23  Stat.  L.,  109). 

541.  That  for  the  current  year  and  thereafter  there  may,  Expenses  of 

J  bakeries,     post 

be  expended  from  the  appropriation  for  regular  supplies  ®°hool8>  m&»»^ 
the  amounts  required  for  the  necessary  equipments  of  the  June  13,  ISQO, 
bake-house  to  carry  on  post  bakeries  5  for  the  necessary  leVisfe, 
furniture,  text-books,  paper,  and  equipments  of  the  post 
schools;  for  the  tableware  and  mess  furniture  for  kitchens 
and  mess-halls ;  *  *  *  each  and  all  for  the  use  of  the 
enlisted  men  of  the  Army.  Acts  of  June  13,  1890  (26  Stat. 
L.,  152),  July  16,  1892  (27  Stat.  L.,  178). 

542.  That  hereafter  no  money  appropriated  for  the  sup- 

port  of  the  Army  shall  be  expended  for  post  gardens  or  J^y  ™<  1892- 
exchanges;  but  this  proviso  shall  not  be  construed  to  pro- 
hibit the  use,  by  post  exchanges,  of  public  buildings  or 
public  transportation  when,  in  the  opinion  of  the  Quarter- 
master-General, not  required  for  other  purposes.  Act  of 
July  16,  1892  (27  Stat.  L.,  178). 

543.  That  hereafter  no  part  of  the  appropriations  for  the 
Quartermaster's  Department  shall  be  expended  on  printing  v.  28,  p.  559. 
unless  the  same  shall  be  done  by  contract,  after  due  notice 

and  competition,  except  in  such  cases  as  the  emergency 
will  not  admit  of  the  giving  notice  for  competition.2  Act 
of  February  12,  1895  (28  Stat.  L.,  659). 

'See,  also,  act  of  February  12, 1895,  paragraph  1164,  post,  which  provides  "that  after 
advertisement  all  the  supplies  for  the  use  of  the  various  departments  and  posts  of 
the  Army  and  of  all  branches  of  the  Army  service  shall,  hereafter,  be  purchased 
where  the  same  can  be  purchased  the  cheapest,  quality,  cost  of  transportation,  and 
the  interests  of  the  Government  considered,  except  that  purchases  may  be  made  in 
open  market,  in  the  manner  con.mon  among  business  men,  when  the  aggregate 
amount  required  does  not  exceed  two  hundred  dollars,  but  every  such  purchase  shall 
be  immediately  reported  to  the  Secretary  of  War."  (28  Stat.  L.,  659.) 

The  requirement  of  section  229  of  the  Revised  Statutes  that  the  Secretary  of  War 
shall  lay  before  Congress,  at  the  commencement  of  each  regular  session,  a  state- 
ment of  all  contracts  and  purchases  made  by  him,  or  under  his  direction,  during  the 
year  preceding;  and  so  much  of  the  act  of  July  5,  1884,  as  requires  the  Quarter- 
master-General and  the  Commissary-General  of  Subsistence  to  report  all  purchase 
made  by  their  Departments,  with  cost  price  and  place  of  delivery,  to  the  Secretary 
of  War  for  transmission  to  Congress  annually,  were  repealed  by  the  act  of  March  2, 
1895  (28  Stat.  L.,  787). 

2This  provision  has  been  embodied  in  the  several  acts  of  appropriation  for  the 
support  of  the  Army  since  that  of  June  30,  1886.  (24  Stat.  L.,  96.) 


192  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


TRANSPORTATION. 

o  Transportation     544.  The  transportation   of  troops,   munitions  of  war, 

Jan.  3i,'i862,c.  equipments,  military  property,  and  stores,  throughout  the 

334.  '  United  States,  shall  be  under  the  immediate  control  and 

Sfl<*    220    R   S 

supervision  of  the  Secretary  of  War  and  such  agents  as  he 
may  appoint.1 
1     545   Tnat  toe  transportation  furnished  by  the  Quarter- 


C6Feb  12  1895  v  master7s  Department  to  officers  traveling  without  troops 
28,p.657.'  shall  be  limited  to  transportation  in  kind  not  including 

sleeping  or  parlor  car  accommodations,  over  free  roads, 
over  bond-aided  Pacific  railroads,  and  by  conveyance 
belonging  to  said  Department.15  Act  of  February  12,  1895 
(28  Stat.  L,,  657). 

1  See  chapter  entitled  CONTRACTS  AND  PURCHASES. 

2  For  allowances  to  officers  and  others  traveling  on  duty  without  troops,  see  the  title 
"  Mileage,"  in  the  chapter  entitled  THE  PAY  DEPARTMENT. 


TRANSPORTATION  OF  PERSONS. 

The  transportation  of  troops,  singly  or  in  organized  bodies,  is  regulated  by  the 
provisions  of  this  paragraph.  The  transportation  of  civilian  employees  and  their 
reimbursement  for  traveling  expenses  are  controlled  by  the  following  paragraphs  of 
the  Army  Regulations  of  1895  : 

TRAVELING  EXPENSES 

For  authorized  journeys  of  civilian  employees  of  any  branch  of  the  military  serv- 
ice transportation  requests  will  be  obtained  when  practicable,  but  will  be  obtained 
in  every  case  for  travel  over  bond  aided  railroads.  (Par.  729,  A.  R.  1895.) 

Reimbursement  of  actual  expenses  when  traveling  under  competent  orders  will  be 
allowed  under  the  following  heads,  to  civilians  in  the  employ  of  any  branch  of  the 
military  service,  excepting  the  expert  accountant  of  the  Inspector  General's  Depart- 
ment, paymasters'  clerks,  and  those  mentioned  in  the  next  succeeding  paragraph,  viz  : 

1.  Cost  of  transportation  (excluding  parlor-car  fare)  over  the  shortest  usually 
traveled  route,  when  it  was  impracticable  to  furnish  transportation  iu.  kind  on 
transportation  requests. 

2.  Cost  of  transfers  to  and  from  railroad  stations,  not  exceeding  50  cents  for  each 
transfer. 

3.  Cost  of  one  double  berth  in  a  sleeping  car,  or  customary  state-room  accommo- 
dation on  boats  and  steamers  when  extra  charge  is  made  therefor. 

4.  Cost  of  meals,  not  exceeding  $3  per  day,  while  en  route,  when  meals  are  not 
included  in  the  transportation  fare  paid;  and  not  exceeding  $3  per  day  for  meals  and 
lodgings  during  necessary  delay  en  route. 

5.  Cost  of  meals  and  lodgings,  not  exceeding  $3  per  day,  while  on  duty  at  places 
designated  in  the  orders  for  the  performance  of  temporary  duty. 

Veterinary  surgeons  of  cavalry  regiments  traveling  under  prbperorders,  in  accord- 
ance with  paragraph  185,  are  not  entitled  to  reimbursement  under  the  fifth  heading 
above  given.  (  Par.  730,  ibid.  ) 

Laborers,  teamsters,  and  employees  of  similar  character,  traveling  under  competent 
orders,  will  be  entitled  to  such  actual  and  necessary  expenses  of  travel  and  sub 
sistence  as  may  be  authorized  by  the  chief  of  bureau  which  pays  the  accounts" 
Those  in  receipt  of  a  ration  under  paragraph  1252  will  not  be  allowed  commutation- 
therefor.  If  it  be  impracticable  for  them  to  carry  rations  in  kind,  rations  will  not 
be  drawn  for  the  period  during  which  they  are  traveling.  (Par.  731,  ibid  ) 

None  but  the  authorized  items  of  traveling  expenses  of  civilians  will  be  allowed. 
They  will  in  all  cases  be  set  forth  in  detail  in  each  voucher  for  reimbursement  sup- 
ported by  oath  and,  when  practicable,  by  receipts.  (Par.  732,  ibid.) 

Paymasters'  clerks  and  the  expert  accountant  of  the  Inspector-  General's  Depart- 
ment, when  traveling  on  duty,  will,  when  transportation  in  kind  cannot  be  furnished 
by  the  Quartermaster's  Department,  be  reimbursed  for  cost  of  transportation  paid 
by  them,  exclusive  of  parlor  or  sleeping  car  fares  or  transfers,  and  will  receive  in 
addition  thereto,  for  all  travel  whether  or  not  on  transportation  requests,  4  cents 
per  mile  for  each  mile  necessarily  traveled  by  them  in  the  performance  of  duty  — 
distance  to  be  computed  over  the  shortest  usually  traveled  route.  (Par.  733.  ibid.) 

Actual  traveling  expenses,  as  contemplated  in  the  preceding  paragraphs,  are  paid 
by  the  following  departments,  viz: 

Pay  Department  .—To  paymasters'  clerks,  the  expert  accountant  of  the  Inspector- 
General's  Department,  civilians  summoned  as  witnesses  before,  and  authorized 
reporters  of,  military  courts. 

Ordnance  Department.  —  To  employees  at  arsenals  and  armories  (cost  of  transpor- 
tation included)  from  appropriations  for  the  service  of  the  Ordnance  Department. 

Engineer  Department  .—  To  employees  on  public  works  and  fortifications  (coat  of 
transportation  included)  from  appropriations  made  specifically  for  the  work. 

Quartermaster's  Department.  —  To  employees  of  the  Quartermaster  s  and  Subsist- 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 


193 


546.  That  in  time  of  peace  the  uuinber  of  draught  and ,  Limit  *> 

b  6  r    o  i 

pack  animals  in  the  Quartermaster's  Department  of  theanimals- 

Transportation 

Army  shall  not  exceed  five  thousand,  and  that  all  trans- of  stores,  etc.,  to 

be  by  contract. 

portation  ot  stores  by  private  parties  tor  the  Army  shall    July  5,  i884,v. 
be  done  by  contract,  after  due  legal  advertisement,  except  22,  i888,v.  25%'. 
in  cases  of  emergency,  which  must  be  at  once  reported  to 
the  Secretary  of  War  for  his  approval.     Act  of  July  5, 1884 
(23  Stat.  L.,  109). 

547.  Hereafter  all  purchases  of  horses,  mules,  or  oxen,    Meansoftrans- 

,  .  .  n        , .  .  '  portation    to    be 

wagons,  carts,  drays,  ships  and  other  seagoing  vessels,  procured  by  con- 
also  all  other  means  of  transportation,  shall  be  made  by  July  5, 1884,  v. 
the  Quartermaster's  Department,  by  contract,  after  due23'p'110' 


ence  Departments,  and  otber  employees  of  the  Army  not  above  provided  for<  (Par. 
734,  ibid.)  This  department  also  furnishes  transportation  to  maimed  soldiers,  etc., 
to  enable  them  to  procure  artificial  limbs  (see  paragraphs  686  and  687,  post),  and  to 
soldiers  who  have  been  admitted  to  the  Soldiers'  Home. 

When  officers  of  the  staff  departments  change  station  the  transfer  of  clerks  or 
other  employees  to  the  new  stations  at  the  expense  of  the  United  States  is  pro- 
hibited, except  in  cases  of  urgent  necessity,  for  which  the  sanction  of  the  Secretary 
of  War  will  first  be  obtained.  The  Pay  Department  is  excepted  from  this  regula- 
tion. (Par.  735,  ibid,) 

TRANSPORTATION  OF  BAGGAGE. 

In  changing  station  an  officer's  authorized  allowance  of  baggage  (a)  will  be  turned 
over  to  a  quartermaster  for  transportation  as  freight  by  ordinary  freight  lines, 
unless  otherwise  ordered  by  the  department  commander  or  higher  authority.  No 
reimbursement  will  be  made  to  an  officer  who  under  such  circumstances,  sends 
packages  by  express  or  ships  and  pays  for  the  transportation  of  his  baggage.  (Par. 
1118,  A.  R.,  1895  ) 

The  baggage  to  be  transported  at  public  expense,  including  mess  chests  and  per- 
sonal baggage,  upon  change  of  station,  will  not  exceed  the  following  weights: 


Rank. 

In  the 
field. 

Changing 
station  . 

Pounds. 
1  000 

Pounds. 
3  500 

BrigadTer  general 

700 

2  800 

yield  officer  

500 

2,400 

200 

2  000 

.First  lieutenan  t  

150 

1,  700 

150 

1  500 

Acting  assistant  surgeon                   

150 

1,200 

150 

500 

Post  and  regimental  noncommissioned  staff  officer,  hospital 
steward,  chief  musician,  and  sergeant  of  the  Signal  Corps, 
each       .        .                              

500 

These  allowances  are  in  excess  of  the  weights  transported  free  of  charge  under 
the  regular  fares  by  public  carriers.  They  may  be  reduced  pro  rata  by  the  command- 
ing officer,  if  necessary,  and  may,  in  special  cases,  be  increased  by  the  War  Depart- 
ment on  transports  by  water.  Shipments  of  officers'  allowance  of  baggage  will  in  all 
cases  be  made  at,  carrier's  risk,  including  those  over  roads  where  tariffs  provide  for 
extra  charge  therefor.  (Par.  1119,  ibid.) 

The  Quartermaster's  Department  will  transport  the  authorized  change  of  station 
allowance  of  baggage  and  professional  books  and  papers  for  officers  or  enlisted  men 
upon  retirement,  or  who  die  in  the  service,  from  their  last  duty  stations  to  such 
places  within  the  limits  of  the  United  States  as  may  be  the  homes  of  their  families, 
or  as  may  be  designated  by  their  legal  representatives  or  executors.  (Par.  11 20,  ibid  ) 

Transportation  of  change  of  station  allowance  of  baggage  is  authorized  for  such 
contract  surgeons  as  may  be  employed,  when  they  join  for  duty  under  the  first  order, 
and  also  on  return  to  their  homes  on  the  termination  of  their  contracts,  if  provided 
for  in  the  contracts.  Graduates  of  the  Military  Academy  and  officers  promoted 
from  the  ranks  will  be  furnished  with  transportation  for  field  allowance  of  baggage 
on  their  first  assignment  to  duty  as  commissioned  officers.  With  these  exceptions, 
transportation  of  baggage  at  public  expense  is  not  authorized  for  officers  joining  for 
duty  on  first  appointment  to  military  service,  nor  upon  reinstatement  or  reappoint- 
ment,  nor  to  effect  transfers  from  one  company  or  regiment  to  another  at  the  request 
of  parties  transferred.  Officers  ordered  on  temporary  duty  and  officers  going  abroad 
as  military  attaches  are  not  entitled  to  such  transportation.  An  officer  detailed  as 

a  The  term  "baggage,"  in  the  military  sense,  and  as  used  in  statutes  relating  to 
the  Army,  embraces  almost  any  article  of  personal  property  which  does  not  exceed 
in  weight  the  limit  prescribed  by  Army  Regulations  or  general  orders.  (3  Dig. 
Conipt.  Dec.,  55.) 

1919 13 


194  THE   MILITARY   LAWS   OP   THE   UNITED    STATES. 

legal  advertisement,  except  in  cases  of  extreme  emergency. 
Act  of  July  5,  1884  (23  Stat.  L.,  110). 


arSuerlry  houses     ^®'  Hereafter  all  purchases  of  horses,  under  appropria- 

to  cbontScuind  ^ons  *°r  norses  tor  ^ne  cavalry  and  artillery  and  for  the 

spectfon.  Indian  scouts,  shall  be  made  by  contract,  after  legal  adver- 

23,  p.  109.       ^'tisement,    by    the    Quartermaster's    Department,    under 

instructions  from  the  Secretary  of  War,  the  horses  to  be 

inspected  under  the  orders  of  the  general  commanding  the 

Army  and  no  horse  shall  be  received  and  paid  for  until 

duly  inspected.1     Act  of  July  5,  1884  (23  Stat.  L.,  109). 

^^'  That  the  number  of  horses  purchased  under  this 
apprOpriation,  added  to  the  number  on  hand,  shall  not  at 


Feb.  12,  1895,  v.  any  time  exceed  the  number  of  enlisted  men  and  Indian 
scouts  in  the  mounted  service;  and  that  no  part  of  this 
appropriation  shall  be  paid  out  for  horses  not  purchased  by 
contract,  after  competition  duly  invited  by  the  Quartermas- 
ter's Department,  and  an  inspection  by  such  Department, 
all  under  the  direction  and  authority  of  the  Secretary  of 
War.  Act  of  February  12,  1895  (28  Stat.  L.,  660). 

supplies  to     550.  The  officers  of  the  Quartermaster's  Department 

naval  and  marine 

detachments,      shall,  upon  the  requisition  of  the  naval  or  marine  officer 

attache,  however,  is  entitled  to  have  his  full  allowance  transported  from  the  post  he 
leaves  to  his  home,  or  to  the  nearest  convenient  place  of  storage,  and  upon  resuming 
duty  in  this  country  from  such  place  of  storage  to  his  post  of  duty.  While  on 
journeys  as  an  attache,  the  cost  of  transporting  his  personal  baggage  can  not  be  paid 
by  the  Quartermaster's  Department.  (Par.  1121,  ibid.) 

The  Quartermaster's  Department  will  furnish  transportation  for  the  prescribed 
regimental  and  company  desks,  for  the  books,  papers,  and  instruments  of  statf 
officers  necessary  to  the  performance  of  their  duties,  and  for  the  medical  chests  of 
medical  officers  ;  also  for  the  professional  books  of  officers  changing  station,  officers 
ordered  home  for  retirement,  graduates  of  the  Military  Academy,  and  officers  joining 
on  first  appointment,  which  they  certify  belong  to  them  and  pertain  to  their  official 
duties;  also  the  professional  books  of  hospital  stewards  changing  station,  not  ex- 
ceeding two  hundred  pounds  in  weight.  Invoices  of  packages  turned  over  to  the 
shipping  officer  will  be  accompanied  by  the  certificate  of  the  officer  as  to  character 
of  books,  and  a  certified  copy  will  be  attached  to  the  bill  of  lading  issued  at  the 
initial  point  of  shipment.  The  certificate  as  to  the  character  of  the  books  of  a  hos- 
pital steward  will  be  given  by  the  medical  officer  under  whom  he  last  served.  (Par. 
1122,  ibid.) 

The  Quartermaster's  Department  will  transport  for  officers  changing  station  the 
number  of  horses  for  which  they  are  legally  entitled  to  forage,  and  an  attendant  to 
accompany  the  horses  when  necessary,  subject  to  the  following  restrictions: 

(1)  That  the  expense  paid  by  the  United  States  shall  not  exceed  $50  for  each 
horse  transported.    The  cost  of  such  shipment  will  be  ascertained  in  advance,  and 
if  found  to  exceed  $50  for  each  horse,  including  transportation  of  attendant,  if  any, 
the  excess  must  be  prepaid  by  the  owner,  who  must  also  pay  all  the  expenses  of  the 
attendant  other  than  his  transportation. 

(2)  That  the  horses  are  owned  by  the  officer  and  were  used  by  him  in  the  public 
service  at  the  station  from  which  he  is  ordered  to  move. 

(3)  The  horses  of  retired  officers  or  officers  ordered  to  their  homes  to  await  retire- 
ment, or  officers  ordered  on  recruiting  service  or  college  detail,  or  to  attend  schools 
of  instruction  as  student  officers,  or  to  effect  a  voluntary  transfer,  will  not  be 
transported  at  public  expense.     (Par.  1069,  ibid.) 

The  Quartermaster's  Department  may  provide  transportation  of  baggage  for 
enlisted  men  traveling  under  orders  without  troops,  not  to  exceed  the  following 
weights  : 

Noncommissioned  officers  ..................................  pounds.  .  100 

Privates  of  the  Hospital  Corps  ................................  do  ____  100 

Other  privates  .................................................  do....    50 

This  allowance  will  accompany  each  man  on  the  conveyance  by  which  he  is  trans- 
ported, and  will  include  the  number  of  pounds  of  baggage  carried  free  on  the 
passage  ticket.  (Par.  1101,  ibid.) 

1  So  much  of  the  act  of  July  5,  1884T  as  requires  these  purchases  to  be  reported  to 
the  Secretary  of  "War  for  transmission  to  Congress  was  repealed  by  the  act  of  March 
2,  1895  (28  Stat.  L.,  787), 


THE    MILITARY   LAWS   OF    THE    UNITED    STATES.  195 

commanding  any  detachment  of  seamen  or  marines  under  1,I>eCp-11^18104  c- 

1  •>,  88.  1   -   V.  •> 

orders  to  act  on  shore,  in  cooperation  with  land  troops,  and 


.  SIT.  ll.i»»,  K.  S. 

during  the  time  such  detachment  is  so  acting  or  proceeding 
to  act,  furnish  the  officers  and  seamen  with  camp  equippage, 
together  with  transportation  for  said  officers,  seamen,  and 
marines,  their  baggage,  provisions,  and  cannon,  and  shall 
furnish  the  naval  officer  commanding  any  such  detach- 
ment, and  his  necessary  aids,  with  horses,  accouterments, 
and  forage. 

551.  That  hereafter  the  Quartermaster-General  and  his    Property  for 

(jrovernment  sur 

officers,  under  his  instructions,  wherever  stationed,  shall  veys,  National 

_     .  -i  i       /•  n  Museum,  etc.,  to 

receive,   transport  and  be  responsible  for    all    property  be  transported. 

^  f  *u       v,   j.v      £>         July  5-  1884-  v- 

turned  over  to  them,  or  any  one  of  them,  by  the  officers  23,  p.  no. 

or  agents  of  any  Government  survey,  for  the  National 
Museum,  or  for  the  civil  or  naval  departments  of  the  Gov- 
ernment, in  Washington  or  elsewhere,  under  the  regula- 
tions governing  the  transportation  of  Army  supplies,  the 
amount  paid  for  such  transportation  to  be  refunded  or  paid 
by  the  Bureau  to  which  such  property  or  stores  pertain. 
Act  of  July  5,  1884  (23  Stat.  L.,  110). 

TRANSPORTATION  BY  LAND  GRANT  AND  BOND  AIDED 
RAILROADS. 

552.  For  the  payment  of  army  transportation  lawfully  ^gStt*  «St 


due  such  land-  grant  railroads  as  have  not  received  aid  in          lfl  Ig96  y 

Government  bonds  (to  be  adjusted  in  accordance  with  the29'?-66-  ' 

decisions  of  the  Supreme  Court  in  cases  decided  under 

such  land-grant  Acts),  but  in  no  case  shall  more  than  fifty 

per  centum  of  the  full  amount  of  service  be  paid,  two  mil- 

lion four  hundred  thousand  dollars  :  Provided,  That  such 

compensation  shall  be  computed  upon  the  basis  of  thef  tariff 

or  lower  special  rates  for  like  transportation  performed  for 

the  public  at  large,  and  shall  be  accepted  as  in  full  for 

all  demands  for  such  service:  Provided  further,  That  in 

expending  the  money  appropriated  by  this  Act,  a  railroad 

company  which  has  not  received  aid  in  bonds  of  the  United 

States,  and  which  obtained  a  grant  of  public  land  to  aid  in 

the  construction  of  its  railroad  on  condition  that  such  rail- 

road should  be  a  post-route  and  military  road,  subject  to 

the  use  of  the  United  States  for  postal,  military,  naval,  and 

other  Government  services,  and  also  subject  to  such  regu- 

lations as  Congress  may  impose  restricting  the  charge  for 

such  Government  transportation,  having  claims  against  the 

United  States  for  transportation  of  troops  and  munitions 

of  war  and  military  supplies  and  property  over  such  aided 


196  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

railroads,  shall  be  paid  out  of  the  moneys  appropriated  by 
the  foregoing  provision  only  on  the  basis  of  such  rate  for 
the  transportation  of  such  troops  and  munitions  of  war 
and  military  supplies  and  property  as  the  Secretary  of  War 
shall  deem  just  and  reasonable  under  the  foregoing  provi- 
sion, such  rate  not  to  exceed  fifty  per  centum  of  the  com- 
pensation for  such  Government  transportation  as  shall  at 
the  time  be  charged  to  and  paid  by  private  parties  to  any 
such  company  for  like  and  similar  transportation ;  and  the 
amount  so  fixed  to  be  paid  shall  be  accepted  as  in  full  for 
all  demands  for  such  service. 1  Act  of  March  16,  1896  (29 
Stat.  L.,  66). 

CIVILIAN  EMPLOYEES. 

Number  of  ci-     553.  That  the  whole  number  of  civilian  employees,  in- 

vilian  employees 

limited.  eluding  agents,  superintendents,  mechanics,  packers,  team- 

23,  p.  359.  sters,  train-masters,  and  so  forth,  paid  from  this  appropria- 
tion for  transportation,  shall  not  at  any  one  time  hereafter 
exceed  one  thousand,  nor  shall  any  of  said  employees  be 
graded  for  salary  above  fourth-class  clerks  of  the  Army 
Eegulations;  and  the  grade  of  sixth-class  clerk  in  the 
Quartermaster's  Department  is  hereby  abolished.2  Act  of 
March  3,  1885  (23  Stat.  L.,  359). 
salaries  of  civil-  554,  That  no  more  than  one  million  dollars  of  the  sums 

ian  employees. 

v-  appropriated  by  this  Act  shall  be  paid  out  for  the  services 
of  civilian  employees  in  the  Quartermaster's  Department, 
including  those  heretofore  paid  out  of  the  funds  appropri- 
ated for  regular  supplies,  incidental  expenses,  barracks 
and  quarters,  army  transportation,  clothing,  camp  and 
garrison  equipage;  that  no  employee  paid  therefrom  shall 
receive  as  salary  more  than  one  hundred  and  fifty  dollars 
per  month,  unless  the  same  shall  be  specially  fixed  by 
law ;  and  no  part  of  the  moneys  so  appropriated  shall  be 
paid  for  commutation  of  fuel  and  for  quarters  to  officers 
or  enlisted  men.3  Act  of  February  12, 1895  (28  Stat.  L.,  661). 

1  This  provision  has  been  incorporated  in  the  several  acts  of  appropriation  since 
that  of  February  24,  1891  (26  Stat.  L.,  776).     For  regulations  respecting  the  trans- 
portation of  persons  and  supplies  over  land-grant  or  bond-aided  roads  see  paragraphs 
1091,  1093,  1129,  1146,  1161,  and  1162,  Army  Regulations  of  1895;    see  also  chapter 
entitled  THE  PAY  DEPARTMENT. 

2  The  act  of  March  3,  1885,  contained  a  similar  provision. 

3  The  amount  to  be  expended  for  the  payment  of  civilian  employees  was  fixed  at 
$1,600,000  by  the  act  of  March  3,  1883  (22  Stat.  L.,  459);  at  $1,500,000  by  the  acts  of 
July  5,  1884  (23  Stat  L.,  Ill),  March  3, 1885  (23  Stat,  L.,  360),  and  June  30, 1886  (24  Stat. 
L.,98) ;  at  $1,300,000  by  the  acts  of  February  9,  1887  (24  Stat,  L.   399),  September  22, 
1888  (25  Stat.  L.,  486),  March  2, 1889  (25  Stat.  L..  830) ,  June  13, 1890  (26  Stat.  L.,  154),  and 
February  24,1891  (26  Stat.  L.,776);  at  $1,200,000  by  the  acts  of  July  16, 1892  (27  Stat. 
L.,  180).  and  February  27,  1893  (27  Stat.  L.,  484) ;  at  $1,100,000  by  the  act  of  August  6, 
1894  (28  Stat.  L.,  240),  and  at  $1.000,000  by  the  acts  of  February  12,  1895  (28  Stat.  L., 
661),  and  March  16.  1896  (29  Stat.  L,,  66). 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  197 

WORKING  PARTIES  AND  EXTRA  DUTY  PAY.1 

555.  When  soldiers  are  detailed  for  employment  as  artifi-  rafej*f  p.fyuty; 
cers  or  laborers  in  the  construction  of  permanent  military  ^Juiy  is^isee,  c. 
works,  public  roads,  or  other  constant  labor  of  not  less^'reb!  i,  1373,' 
than  ten  days7  duration,  they  shall  receive,  in  addition  toMar'.3,'i885%.23,' 
their  regular  pay,  the  following  compensation :  [Fifty  cents  im,  v'.  23,  p.  no.1 
per  day  for  mechanics,  artisans,  school-teachers,  and  thirty- 
five  cents  per  day  for  other  clerks,  teamsters,  laborers,  and 

others.]    This  allowance  of  extra  pay  shall  not  apply  to  the 
troops  of  the  Ordnance  Department. 

556.  Working  parties  of  soldiers  shall  be  detailed  for    Details  to  be  in 
employment  as  artificers  or  laborers,  in  the  construction  of w  Juiygi3,  isee,  c. 
permanent  military  works  or  public  roads,  or  in  other  con-  II6' s' 

stant  labor  only  upon  the  written  order  of  a  commanding    Sec-1236>B*s- 
officer,  when  such  detail  is  for  ten  or  more  days. 

557.  Details  to  special  service  from  forces  in  the  field    Details  in  the 

field ;  now  made. 

shall  be  made  only  with  the  consent  of  the  commanding    Mar.  3,  ises,  c. 

0  75,  s.  35,  v.  12,  p. 

officer  of  the  forces.  

1  WORKING  PARTIES— EXTRA  AND  SPECIAL  DUTY  MEN. 

Troops  will  not  be  employed  in  labors  that  interfere  with  their  military  duties 
except  in  cases  of  necessity.  (Par.  163,  A.  E.  1895.) 

Enlisted  men  detailed  to  perform  specific  services  which  remove  them  temporarily 
from  the  ordinary  duty  roster  of  the  organization  to  which  they  belong  will  be  re- 
ported on  extra  duty  if  receiving  increased  compensation  therefor,  otherwise,  on 
special  duty.  They  will  not  be  placed  on  extra  duty  except  as  bakers  or  to  per- 
form the  necessary  routine  services  in  the  Quartermaster's  and  Subsistence  Depart- 
ments, without  the  sanction  of  the  department  commander,  nor  will  they  be  em- 
ployed on  extra  duty  for  labor  in  camp  or  garrison  which  can  be  properly  performed 
by  fatigue  parties.  Allotments  of  funds  for  payment  of  extra-duty  men  at  depart- 
ment headquarters  and  depots  under  the  control  of  department  commanders  will  be 
made  only  with  the  approval  of  the  Secretary  of  War.  Duty  of  a  military  charac- 
ter must  be  performed  without  extra  compensation.  (Par.  164,  ibid.) 

Enlisted  men  detailed  by  name  on  extra  duty  under  competent  authority  at  con- 
stant labor  for  not  less  than  ten  days  are  entitled  to  receive  extra-duty  pay  at  the 
following  rates :  For  services  as  mechanics,  artisans,  and  school-teachers,  50  cents 
per  day;  as  bakers,  according  to  paragraph  306;  as  overseers,  clerks,  teamsters, 
laborers,  and  for  all  other  extra-duty  services,  35  cents  per  day.  (Par.  165,  ibid.) 

The  detail  of  a  noncommissioned  officer  on  extra  duty  other  than  that  of  overseer 
will  not  be  made  without  the  approval  of  the  Secretary  of  War.  A  noncommis- 
sioned officer  will  not  be  detailed  on  any  duty  inconsistent  with  his  rank  and  posi- 
tion in  the  military  service.  (Par.  166,  ibid.) 

Noncommissioned  staff'  officers  and  enlisted  men  of  the  several  staff  departments 
will  not  be  detailed  on  extra  duty  without  authority  from  the  Secretary  of  War. 
They  are  not  entitled  to  extra-duty  pay  for  services  rendered  in  their  respective 
departments.  (Par.  167,  ibid.) 

Company  artificers,  farriers,  blacksmiths,  saddlers,  and  wagoners  will  not  receive 
extra-duty  pay  unless  detailed  on  extra  duty  in  the  Quartermaster's  Department, 
wholly  disconnected  from  their  companies.  (Par.  168,  ibid.) 

Soldiers  on  extra  duty  will  be  paid  the  extra  rates  of  pay  allowed  by  law  for  the 
duty  performed  and  for  the  exact  number  of  days  employed;  and  no  greater  num- 
ber of  men  will  be  employed  on  extra  duty  at  any  time  than  can  be  paid  the  full 
legal  rates  for  the  time  employed  from  the  iunds  provided.  Payments  made  in  vio- 
lation of  the  above  rules  will  be  charged  against  the  officers  who  ordered  the  details. 
(Par.  169,  ibid.) 

Extra-duty  men  will  be  held  to  such  hours  of  labor  as  may  be  expedient  and  nec- 
essary; but,  except  in  case  of  urgent  public  necessity,  as  in  military  operations, 
eight  hours  will  be  considered  a  day's  work.  For  all  hours  employed  beyond  that 
number  the  soldier  will  receive  additional  compensation— the  extra  hours  being 
computed  as  fractions  of  a  day  of  eight  hours'  duration.  (Par.  171.  ibid.) 

Details  of  enlisted  men  for  extra  and  special  duty  will  be  limited  to  actual  neces- 
sities, which  will  be  determined  by  post  commanders  in  accordance  with  limits  pub- 
lished in  orders  from  the  War  Department.  Allotments  to  posts  of  funds  for  extra- 


198  THE  MILITARY  LAWS   OP  THE  UNITED   STATES. 

Kates  of  extra-  553.  Extra-duty  pay  hereafter  shall  be  at  the  rate  of 
July  MM*,  v.  fifty  cents  per  day  for  mechanics,  artisans,  school-teachers, 
and  clerks  at  Army,  division,  and  department  headquar- 
ters, and  thirty -five  cents  per  day  for  other  clerks,  team- 
sters, laborers,  and  others.1  Act  of  July  5,  1884  (23  Stat. 
L.,  110). 

FUEL  AND  FORAGE. 

559.  Allowance  of  or  commutation  for  fuel  to  commis- 
sioned  officers  is  hereby  prohibited ;  but  fuel  may  be  fur- 
nished to  the  officers  of  the  Army  by  the  Quartermaster's 
Department,  for  the  actual  use  of  such  officers  only,  at  the 
rate  of  three  dollars  per  cord  for  standard  oak  wood,  or  at 
an  equivalent  rate  for  other  kinds  of  fuel,  according  to  the 
regulations  now  in  existence;1  and  forage  in  kind  may  be 
furnished  to  the  officers  of  the  Army,  by  the  Quartermaster's 
Department,  only  for  horses  owned  and  actually  kept  by 
such  officers  in  the  performance  of  their  official  military 
duties  when  on  duty  with  troops  in  the  field  or  at  such  mili- 
tary posts  west  of  the  Mississippi  Kiver,  as  may  be  from 
time  to  time  designated  by  the  Secretary  of  War,  and  not 
otherwise  as  follows : 

To  the  General,  five  horses  ; 

To  the  Lieutenant-General,  four  horses; 

To  a  major-general,  three  horses; 

To  a  brigadier-general,  three  horses; 

To  a  colonel,  two  horses ; 

To  a  lieutenant-colonel,  two  horses; 

To  a  major,  two  horses; 

To  a  captain  (mounted),  two  horses; 

To  a  lieutenant  (mounted),  two  horses; 

To  an  adjutant,  two  horses ; 

To  a  regimental  quartermaster,  two  horses.2  Sec.  8,  act 
of  June  17, 1878  (20  Stat.  L.,  150). 

duty  pay  are  made  by  department  commanders  from  allotments  made  to  depart- 
ments for  the  purpose,  and  must  not  be  exceeded  without  special  authority  from 
department  commanders.  (Par.  172,  ibid.) 

1  Enlisted  men  of  the  several  staif  departments  are  not  entitled  to  extra-duty  pay 
for  services  rendered  in  the  department  to  which  they  belong.    To  entitle  them  to 
such  compensation  they  must  be  detailed  by  competent  orders  and  must  have  per- 
formed duty  in  another  department  than  that  in  which  they  are  enlisted.    Under 
existing  orders  enlisted  men  of  the  Ordnance  Department  are' entitled  to  extra-duty 
pay  when  performing  duty  in  the  Quartermaster's  Department.      (Circular  II,  A.  G. 
O.,  1886;  I,  ibid,  1887,  and  par.  167,  A.  R.,  1895.) 

Clerical  services  at  Army,  division,  and  department  headquarters  have,  since  the 
act  of  July  29,  1886  (24  Stat.  L.,  167),  been  performed  by  a  corps  of  general  service 
clerks  and  messengers.  By  the  act  of  August  6,  1894,  this  force  ceased  to  exist  as  a 
part  of  the  enlisted  strength  of  the  Army. 

2  This  statute,  which  replaces  section  1271,  Revised  Statutes,  contains  the  added 
condition  that  horses  shall  not  only  be  "actually  kept"  but  "owned"  by  officers  in 
the  performance  of  their  military  duties. 

The  right  conferred  upon  officers  of  the  Army  by  the  act  of  June  18, 1878  (20  Stat. 
L.,  150),  to  purchase  fuel  for  their  actual  use  only,  in  the  manner  and  at  the  terms 
prescribed  by  said  act,  pertains  to  all  officers  of  the  Army  irrespective  of  the  nature 
of  the  duties  upon  which  they  are  engaged.  No  part  of  the  cost  of  fuel  so  sold 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  199 

560.  That  there  shall  be  no  discrimination  in  the  issue  of  A>T°  discrimina- 

tion   to    officers 

forage  against  officers  serving  east  of  the  Mississippi  Kiver,  ^r7»n8gi  sTi*  °f 
provided  they  are  required  by  law  to  be  mounted,  and  actu-  River, 
ally  keep  and  own  their  animals.    Act  of  February  24, 1881 21,  p.  347.' 
(21  Stat.  L.,  347). 

CLOTHINGL 

561.  No  contract  or  purchase  on  behalf  of  the  United    Purchases  of 

clothing. 

States  shall  be  made,  unless  the  same  is  authorized  by  law  sec.  3732,  R.S. 
or  is  under  an  appropriation  adequate  to  its  fulfillment, 
except  in  the  War  and  Navy  Departments,  for  clothing, 
subsistence,  forage,  fuel,  quarters,  or  transportation,  which, 
however,  shall  not  exceed  the  necessities  of  the  current 
year. 

562.  The  President  may  prescribe  the  uniform  of  the  rUnir^orem  to  be 
Army  and  quantity  and  kind  of  clothing  which  shall  be  KSiSjiTt. 
issued  annually  to  the  troops  of  the  United  States.1  GO,  s.  i, \.  3,  p.  aw! 

Sec.  1296,  B.  S. 

563.  The  money  value  of  all  clothing  overdrawn  by  the    ciothingaiiow- 
soldier  beyond  his  allowance  shall  be  charged  against  him,  c  ^pr.^  24,^  wie, 
every  six  months,  on  the  muster-roll  of  his  company,  or  onp  »8;  May  is! 

'  1872,  c.  161,  s.  3,  v. 

his  final  statements  if  sooner  discharged,  and  he  shall  re-n.jxm- 
ceive  pay  for  such  articles  of  clothing  as  have  not  been 
issued  to  him  in  any  year,  or  which  may  be  due  to  him  at 
the  time  of  his  discharge,  according  to  the  annual  estimated 
value  thereof.  The  amount  due  him  for  clothing,  when  he 
draws  less  than  his  allowance,  shall  not  be  paid  to  him 
until  his  final  discharge  from  the  service.2 

is  properly  chargeable  to  the  appropriation  for  any  public  work,  unless  provision  is 
expressly  made  therein  for  such  cost.  (3  Dig.  Compt.  Dec.,  171.) 

The  forage  ration  for  a  horse  is  14  pounds  of  hay  and  12  pounds  of  oats,  corn,  or 
barley,  for  a  mule,  14  pounds  of  hay  and  9  pounds  of  oats,  corn,  or  barley.  Depart- 
ment commanders  will  reduce  the  forage  ration  when  necessary.  (Par.  1041,  A.  K., 
1895.) 

One  hundred  pounds  of  straw  per  month  is  allowed  for  bedding  to  each  horse  or 
mule  in  public  service.  At  posts  where  straw  is  not  furnished,  hay  will  be  issued 
and  used  for  bedding.  (Par.  1049,  ibid.) 

Forage  is  furnished  only  to  officers  for  the  horses  owned  and  actually  kept  by  them 
in  the  performance  of  their  official  duties  when  serving  with  troops  in  the  field 
or  at  military  posts  and  stations,  and  for  the  following  number:  To  a  lieutenant- 
general,  four;  to  a  major  general  or  a  brigadier-general,  three;  to  a  colonel,  lieu- 
tenant-colonel, major,  captain,  or  lieutenant,  mounted,  and  regimental  adjutant  and 
quartermaster,  each  two.  ( Par.  1044,  ibid.) 

Mounted  officers  will  not  use  public  horses  and  at  the  same  time  draw  forage  for 
those  they  own ;  nor  will  they  use  public  animals  except  as  authorized  by  regula- 
tions. Should  circumstances  render  it  necessary,  an  officer  may  be  temporarily  fur- 
nished public  horses,  but  during  such  period  he  will  not  be  permitted  to  draw  forage 
for  a  private  horse.  (Par.  1045,  ibid.) 

An  officer  not  mounted  may  purchase  forage  for  two  horses  kept  for  his  own  use, 
for  which  he  will  be  charged  cost,  including  transportation.  The  sale  of  forage  to 
mounted  officers  is  forbidden.  (Par.  1046,  ibid.) 

1 A  table  showing  the  price  of  clothing  and  equipage  for  the  Army,  the  allowance 
of  clothing  in  kind  to  each  soldier  for  each  year  of  his  enlistment,  and  his  clothing 
money  allowance  for  each  year  and  day  thereof,  also  the  allowance  of  equipage  to 
officers  and  enlisted  men,  will  be  published  in  orders.  (Par.  1163,  A.  R.,  1895.) 

'Each  soldier's  clothing  account  will  be  kept  by  the  company  commander  in  the 
company  clothing  book.  The  account  will  show  the  money  value  of  the  clothing 
received  by  the  soldier  at  each  issue,  and  his  receipt  therefor  will  be  taken  in  the 
book.  (Par.  1180,  A.  R.,  1895.) 

Company  and  detachment  commanders  will  settle  the  clothing  account  of  every 
enlisted  man  of  their  respective  commands  six  months  after  the  date  of  his  enlist- 
ment, and  thereafter  on  June  30  and  December  31  of  each  year.  The  entire  amount 
found  due  the  United  States  for  the  periods  embracing  the  dates  of  settlement  will 


200  THE    MILITARY   LAWS    OF   THE   UNITED    STATES. 

^^'  ^De  amoun^s  °f  deposits  and  clothing-balances  accu- 


arge.         niulating  to  the  soldier's  credit  under  sections  thirteen  hun- 
6i,  8ay5,  v.  i7,'p.'dred  and  two  and  thirteen  hundred  and  five,  shall,  when 

117 

sec.  1308,  R.S.  payable  to  him  upon  his  discharge,  be  paid  out  of  the 
appropriations  for  "pay  of  the  Army"  for  the  then  current 
fiscal  year. 

s     ^^'  ^e  Secretary  °f  War  may,  on  the  recommendation 
Ma/.  12,  1868,  of  the  Surgeon-General,  order  gratuitous  issues  of  clothing 
250.  P  to  soldiers  who  have  had  contagious  diseases,  and  to  hospi- 

'  '  tal  attendants  who  have  nursed  them,  to  replace  any  arti- 
cles of  their  clothing  destroyed  by  order  of  the  proper 
medical  officers  to  prevent  contagion,1 
selling   or     566.  Any  soldier  who  sells  or  through  neglect  loses  or 

spoiling    cloth-  .  . 

ing,   etc.;  pen-  spoils  his  horse,  arms,  clothing,  or  accouterments  shall  be 

a  .ru'iy  27,  1892,  v.  punished  as  a  court-martial  may  adjudge,  subject  to  such 

17  Art.'  war.    limitation  as  may  be  prescribed  by  the  President  by  virtue 

of  the  power  vested  in  him.     [Seventeenth  Article  of  War.] 

be  charged  to  the  soldier  upon  the  muster  and  pay  rolls  The  money  allowance  of 
clothing  for  the  first  year  will  be  allotted  by  half  years  (Par  1181,  ibid.) 

The  balance  due  ttie  soldier  at  either  of  these  dates  will  be  credited  to  him  upon 
the  company  clothing  book.  It  will  not  be  placed  upon  the  muster  and  pay  rolls,  but 
the  final  balance  due  at  date  of  discharge  will  be  entered  upon  the  final  statements. 
In  case  of  transfer,  the  balance  due  the  soldier  or  the  United  States  will  be  entered 
on  the  descriptive  list.  All  balances  of  this  character  will  be  stated  in  words  and 
figures  (Par.  1182,  ibid.) 

The  clothing  account  of  a  soldier  who  deserts  should  be  settled  in  full  to  the  date 
of  desertion.  The  balance  due  him  or  the  United  States  will  be  entered  on  the  next 
muster  and  pay  rolls  after  date  of  desertion.  The  amount  due  the  United  States  or 
the  soldier  at  date  of  desertion  should  be  ascertained  by  crediting  the  soldier  with 
clothing  allowance  from  date  of  last  clothing  settlement  to  the  date  of  desertion  (ex- 
cluding the  day  of  desertion)  and  debiting  him  with  the  money  value  of  all  clothing 
drawn  oy  him  :  the  difference  between  the  two  amounts  will  be  the  amount  due  the 
United  States  or  the  soldier.  (Par.  1183,  ibid.) 

A  deserter  is  entitled  to  clothing  allowance  from  the  date  he  surrenders  or  is  ap- 
prehended, and  the  amount  due  him  will  be  computed  from  the  tables  then  and  sub- 
sequently in  force.  A  new  clothing  account  will  be  opened  without  reference  to  his 
account  at  date  of  desertion.  (Par.  1184,  ibid.) 

Clothing  allowance  accruing  to  a  soldier  after  return  to  the  service  from  desertion 
will  not  be  used  to  reduce  the  amount  of  the  soldier's  indebtedness  at  date  of  deser- 
tion; the  full  amount  of  the  soldier's  indebtedness  must  be  charged  on  the  roll,  to 
be  deducted  by  the  paymaster  when  he  settles  the  soldier's  account.  (Par.  1185,  ibid.) 

Section  1297,  KeviseVi  Statutes,  forbidding  the  allowance  of  clothing  to  ordnance 
sergeants,  was  repealed  by  the  act  of  July  14,  1892.  (27  Stat.  L.,  578.) 

1  GRATUITOUS  ISSUES. 

Commanding  officers  may  order  necessary  issues  of  clothing  to  military  prisoners 
who  have  no  clothing  allowance,  from  deserters'  or  other  damaged  clothing  when 
there  is  such  in  store  or  from  clothing  specially  provided  for  the  purpose.  The 
receipt  of  the  officer  in  charge  of  the  prisoners  will  be  the  quartermaster's  voucher 
for  sueh  issue.  (Par.  1193,  A.  K.,  1895.) 

Gratuitous  issues  of  clothing  may  be  made,  under  the.  provisions  of  section  1298, 
Eevised  Statutes,  to  replace  articles  destroyed  to  prevent  the  spread  of  contagious 
diseases.  (Par.  1194,  ibid.) 

Should  it  become  necessary  to  issue  new  clothing  for  use  in  the  burial  of  a  deceased 
soldier,  as  in  the  case  of  a  man  who  dies  away  from  his  proper  command  and  under 
circumstances  rendering  such  issues  imperatively  necessary,  the  expense  of  the  issue 
will  be  borne  by  the  United  States,  and  the  clothing  will  be  dropped  from  the  returns 
of  the  issuing  officer  on  the  orders  of  the  commanding  officer,  which  must  recite  the 
necessity  for  the  issue.  (Par.  1195,  ibid  ) 

LAUNDRY  WORK  FOR  RECRUITS  AT  DEPOTS. 


The  Quartermaster's  Department  is  authorized  to  pay  from  the  appropriate 
clothing  and  equipage  a  sum  not  exceeding  $1.50  for  the  laundry  work  of  each  n 
at  rendezvous  stations  who  has  no  funds  of  his  own.  The  expenditure  will  bech 


ion  for 

:  of  each  recruit 

The  expenditure  will  be  charged 
on  the  clothing  account  of  the  recruit  and  so  noted  on  his  descriptive  and  assignment 
card.  (Par.  1192,  A.  BM  1895.) 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  201 


ALTERING   CLOTHING. 

567.  It  shall  be  lawful  for  the  commanding  officer  of  each    Altering  cloth- 
regiment,  whenever  it  may  be  necessary,  to  cause  the  coats,  m|'eb.  27,1877,0. 
vests,  and  overalls  or  breeches  which  may  from  time  to  69secA92&,  R.3s. 
time  be  issued  to  and  for  his  regiment  to  be  altered  and 
new-made,  so  as  to  better  to  fit  them  to  the  persons  respec- 
tively for  whose  use  they  shall  be  delivered;  and  for  defray- 
ing the  expense  of  such  alterations,  to  cause  to  be  deducted 

and  applied  out  of  the  pay  of  such  persons  a  sum  or  sums 
not  exceeding  twenty  five  cents  for  each  coat,  eight  cents 
for  each  vest  and  for  each  pair  of  overalls  or  breeches. 

568.  That  hereafter  the  regimental  price  fixed  for  altering    Limit  of  cost, 
and  fitting  soldiers  clothing  shall  not  exceed  the  cost  of  25,  m.  ' 
making  the  same  at  the  clothing  depots.    Act  of  March  2, 

1889  (25  Stat.  L.,  831). 

BAEEACKS  AND   QUARTERS. 

569.  Permanent  barracks  or  quarters  and  buildings  andba^rea^anent 
structures  of  a  permanent  nature  shall  not  be  constructed  83Mar-  *> 1859' c- 
unless  detailed  estimates  shall  have  been  previously  sub-  432.8' 

...     ,'  ,  ,  .    ,  .          Sec.ll36,R.S. 

mitted  to  Congress,  and  approved  by  a  special  appropria- 
tion for  the  same,  except  when  constructed  by  the  troops; 
and  no  such  structures,  the  cost  of  which  shall  exceed 
twenty  thousand  dollars,  shall  be  erected  unless  by  special 
authority  of  Congress.1 

570.  That  hereafter  no  expenditures  exceeding  five  hun-    Limit  on  ex- 

•i-iin  -i-iii  i  i      .1  T  penditures. 

dred  dollars  shall  be  made  upon  any  building  or  military 
post,  or  grounds  about  the  same,  without  the  approval  of   Approval  of 
the  Secretary  of  War  for  the  same,  upon  detailed  estimates  inCcasae7  of  imr 
of  the  Quartermaster's  Department,  and  the  erection,  con-  JSISgfetc.  e: 
struction,  and  repairs  of  all  buildings  and  other  public  27^484. 1893>v' 
structures  in  the  Quartermaster's  Department  shall,  so  far 
as  may  be  practicable,  be  made  by  contract,  after  due  legal 
advertisement.1    Act  of  February  27, 1893  (27  Stat.  L.,  484). 

571.  At  all  posts  and  stations  where  there  are  public  .Quarters  in 
quarters  belonging  to  the  United  States,  officers  may  be  mshed  to  officers. 

^         .,,.,,  .       ,  .      ,    .  ,  ..  Sec.  9,  June  17, 

furnished  with  quarters  in  kind  in  such  public  quarters,  i878,v.  20,  P.i44. 
and  not  elsewhere,  by  the  Quartermaster's  Department, 
assigning  to  the  officers  of  each  grade,  respectively,  such 
number  of  rooms  as  is  now  allowed  to  such  grade  by  the 

1  The  same  statute  contains  the  requirement  that  the  posts  at  which  quarters  for 
hospital  stewards  are  to  he  constructed  shall  be  designated  by  the  Secretary  of  War, 
and  such  quarters  shall  be  built  by  contract,  after  legal  advertisement  whenever 
practicable.  (See  paragraph  692,  post.) 


202 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


rules  and  regulations  of  the  Army.1 
1878  (20  Stat.  L.,  144). 


Sec.  9,  act  of  June 


1  The  following  table  shows  the  number  of  rooms,  the  quantity  of  fuel,  and  the 
allowance  of  cooking  and  heating  stoves  to  be  supplied  for  the  use  of  officers  and 
men  in  quarters  and  barracks : 


Booms. 

Cords 
of  wood 
per 
month. 

Increased 
allowance 
from  Sep 
tember  to 
April,  both 
inclusive. 

For 

quar- 
ters. 

For 
of- 
fice. 

As  quarters. 

As  kitchen. 

§ 

tc 

«! 

From  May  1  to  Aug.  31. 

From  Sept.  1  to  Apr.  30. 

Between  36th  and  43d  deg. 
N.  latitude,  one-fourth. 

1 
1 

il 

«• 

's 
i 

> 

| 

bC 

a 

1 

a 

1 

0 

3 
&> 

c 
« 

it 

a 
j2 

1 

Heating  stoves. 

A  lieutenant-general  or  major-general.  .  . 

5 

4 

1 
1 

1 

1 
1 

5 
4 

33J 
2 
3 

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g 

The  Commanding  General  of  the  Army  .  . 
The  commanding  officer  of  a  territorial 

The  aids  to  the  commanding  officer  of  a 

1 

An  assistant  or  deputy  quartermaster- 
general,  an  assistant  commisary-gen- 
eral  of  subsistence,  an  assistant  sur- 
geon-general, the  assistant  and  deputy 
paymaster-general,and  the  chief  quar- 
termaster and  chief  commissary  at  the 
headquarters  of  a  territorial  depart- 

fl 

The  commanding  officer  of  a  regiment 
or  post,  or  paymaster,  quartermaster, 
assistant  quartermaster,  commissary, 

1 

An  assistant   adjutant-general,   an  in- 
spector-general,  an  acting  inspector- 
general,  an  engineer  officer,*  an  ord- 
nance officer,*  a  signal  officer,  a  judge- 
advocate  or  an  acting  judgf  -advocate, 
and  the  senior  medical  officer,  when 
stationed  on  duty  at  any  place  not  in 
the  field  *  each 

1 

1 
1 

i 

An  acting  assistant  quartermaster,  an 
acting  commissary  of  subsistence,  an 
adjutant,  when  approved  by  the  Quar- 

1 

A    sergeant-major,    quartermaster-ser- 
geant, sergeant  of  the  post  noncom- 
missioned staff,  hospital  steward,  vet- 
erinary surgeon,  signal  sergeant,!  and 

1 

» 

A 

I 

A 

Each  noncommissioned  officer,  musician, 

Each  necessary  fire  for  the  sick  in  hos- 
pital, each  dispensary  and    hospital 
mess  room,  at  a  military  post  or  sta- 
tion, to  be  regulated  by  the  surgeon 
and  commanding  officer,  not  exceeding. 
For  general  hospitals,  when  necessary, 
not  exceeding  for  each  bed 

Each  guard  fire,  to  be  regulated  by  the 
commanding  officer  not  exceeding 

1 

1 

1 

Each  necessary  fire  for  military  courts 
or  boards  at  a  rate  not  exceed*inf 

Storehouse  of  commissary  and  quarter- 
master, when  necessary,  not  exceeding 
for  each  

*  Except  at  Military  Academy . 


t  Except  when  serving  in  a  detachment. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


203 


572.  Hereafter  officers  temporarily  absent  on  duty  in  the  p^Jgi8  ab*^ 
field  shall  not  lose  their  right  to  quarters,  or  commutation^ 
thereof,  at  their  permanent  station  while  so  temporarily^ 
absent.     Act  of  February  27,  1893  (27  Stat.  L.,  478).  27;P7478.' 


Increased 

Cords 

allowance 

Rooms. 

of  wood 
per 
month. 

from  Sep- 
tember to 
April,  both 

quar- 
ters. 

of- 
fice. 

inclusive. 

55 

8 

jd 

i 

i 

bD 

• 

"t5    £ 

» 

1 

•< 

«4 

^s 

•§ 

fe 

o 

o 

rtg 

rrl  "^ 

0) 

(§ 

E 

a 

H 

2 

So' 

I 

I 

| 

t 

£ 

I 

II 

0 

00 

bJO 

a 

hC 

P 

00 

bJO 

00 

m 

0 

e 

o 

I 

Ej 

1 

1 

•s 

-4 

^ 

PH 

PR 

A 

m 

w 

0 

w 

Each  employee  of  the  Quartermaster's, 

Subsistence,  or  Medical  Department 

to  whom  subsistence  in  kind  is  is>sued 

A 

i 

A 

& 

For  library,  reading  room,  schoolroom, 

chapel,  and  gymnasium,  1  heating  stove 
for  each,  and  when  the  garrison  exceeds 
150  enlisted  men,  2  heating  stoves,  and 

such  quantity  of  fuel  for  the  same  as 
may  be  certified  to  as  necessary  by  the 
officers  in  charge  and  approved  by  the 

For  a  company  :  2  large  stoves  in  dormi- 

tory, 1  large  stove  in  each  mess  room 
and  day  room,  1  small  stove  for  each  of 

the  two  rooms  for  noncommissioned 

officers,  1  small  stove  for  the  library, 

and  1  cooking  stove  or  range  sufficient 
to  cook  its  food                       .  .... 

Each  hospital  kitchen  

! 

1 

For  each  authorized  room  as  quarters  for 

civilian  employees            

1 

For  each  six  civilian  employees  to  whom 

fuel  is  allowed                           .     .  . 

1 

T 

For  telegraph  office 

1 

For  each  blacksmith,  carpenter,  and  sad- 

dler shop                                    ..... 

1 

(Par.  1006,  A.  E,.,  1895.) 

ALLOWANCE  AND  ASSIGNMENT  OF  QUARTERS. 

At  each  post  and  station  where  there  are  public  quarters  in  buildings  belonging  to 
the  United  States,  the  quartermaster,  under  direction  of  the  commanding  officer,  will 
allot  to  each  officer  the  quarters  to  which  his  rank  entitles  him.  (Par.  984,  A.  R.. 
1895.) 

An  officer  reporting  for  duty  at  a  post  will,  immediately  upon  his  arrival,  make 
written  application  to  the  commanding  officer  for  quarters.  If  in  command  of  troops 
he  will  apply  for  quarters  for  himself,  for  his  subordinate  officers,  and  the  enlisted 
men  of  his  command.  The  application  will  be  accompanied  by  a  copy  of  the  order 
directing  him  to  report  at  the  station,  and  will  be  referred  to  the  quartermaster  for 
proper  action  under  such  instructions  as  the  commanding  officer  may  indorse  thereon. 
(Par.  987,  ibid.) 

An  officer  will  not  occupy  more  than  his  proper  allowance  of  quarters,  except  by 
permission  of  the  commanding  officer  when  there  is  an  excess  of  quarters  at  the 
station.  The  allowance  will  be  reduced  pro  rata  by  the  commanding  officer  when 
the  number  of  officers  and  troops  present  makes  it  necessary.  If  the  public  build- 
ings are  inadequate,  the  commanding  officer  will  apply,  through  the  department  com- 
mander, to  the  Secretary  of  War  for  authority  to  hire  necessary  quarters.  (Par.  988, 
ibid.) 

Officers  on  duty  without  troops  at  stations  where  there  are  public  quarters  will  be 
furnished  them  in  kind.  If  insufficient,  application  for  authority  to  hire  quarters 
will  be  made  as  directed  in  paragraph  988.  (Par.  989,  ibid.) 

An  appropriate  set  of  quarters,  equal  to  those  of  a  captain,  will  be  set  apart 


204  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 


ACCOUNTABILITY  FOR  CLOTHING. 

Returns  of     573.  Every  officer  who  receives  clothing  or  camp  eaui- 

clothing  and  '  . 

equipage.          page  for  theuse  of  his  command,  or  for  issue  to  the  troops, 
74,.  a  2,  v.  4,  p.  174';  shall  render  to"\he  Quartermaster-General,  at  the  expira- 

Feb.  27,  1877,   v.     . 

eg,  p.  243;  Mar.  tion  of  each  regular  quarter  of  the  year,  quarterly  returns 
29,  1894,  v.  28,  p.  ^.  gucj1  guppiies  according  to  the  forms  which  may  be  pre- 

Stfr  1221   R  S 

'  scribed,  accompanied  by  the  requisite  vouchers  for  any 
issues  which  shall  have  been  made.1 

uniforms  and  574.  The  clothes,  arms,  military  outfits,  and  accouter- 
tonbemseoid!  bar-  ments  furnished  by  the  United  States  to  any  soldier  shall 
ioaned%ctcangef  '  not  be  sold,  bartered,  exchanged,  pledged,  loaned,  or  given 
75M8ar23!'v86i2,p.'  away;  and  no  person  not  a  soldier,  or  duly  authorized  offi- 


3748  B  s  cer  °^  ^e  United  States,  who  has  possession  of  any  such 
clothes,  arms,  military  outfits,  or  accouterments,  so  fur- 
nished, and  which  have  been  the  subjects  of  any  such  sale, 
barter,  exchange,  pledge,  loan,  or  gift,  shall  have  any 
right,  title,  or  interest  therein;  but  the  same  maybe  seized 
and  taken  wherever  found  by  any  officer  of  the  United 
States,  civil  or  military,  and  shall  thereupon  be  delivered 
to  any  quartermaster,  or  other  officer  authorized  to  receive 
the  same.  The  possession  of  any  such  clothes,  arms,  mili- 
tary outfits,  or  accouterments  by  any  person  not  a  soldier 
or  officer  of  the  United  States  shall  be  presumptive  evidence 
of  such  a  sale,  barter,  exchange,  pledge,  loan,  or  gift. 

permanently  for  the  chaplain.  He  will  not  be  displaced,  except  by  a  reduction  when 
the  quarters  are  insufficient  for  the  garrison,  and  he  will  not  then  be  entirely  dis- 
placed, nor  allowed  to  choose  others.  (Par.  991,  ibid.) 

An  officer's  right  to  quarters  is  solely  one  of  occupancy;  when  he  and  his  famil 
cease  to  occupy  them,  except  in  case  of  temporary  absence,  they  are  open  to  selectio 
by,  and  reassignment  to  some  other  officer  on  duty  at  the  post.  (Par.  992,  ibid.) 

When  assigned  to  duty  without  troops  or  awaiting  orders  for  the  convenience  o 
the  Government,  officers  will  be  entitled  to  quarters,  but  in  no  case  will  they  be  fur 
nished  quarters  at  two  stations  at  the  same  time.  (Par.  993,  ibid.) 

For  statutory  provisions  respecting  commutation  of  quarters  see  the  chapte 
entitled  THE  PAY  DEPARTMENT.  See  also,  for  provisions  respecting  the  construe 
tion  of  quarters  for  hospital  stewards,  paragraph  692,  post. 


The  Quartermaster's  Department  •will  provide  in  all  permanent  barracks  a  bo 
locker  for  each  enlisted  man  for  his  uniform  and  extra  clothing.  Each  man  will  pro 
vide  his  own  lock.  (Par.  981,  A.  R.,  1895.) 

1  The  question  of  property  accountability  in  the  War  Department  is  now  regulate 
by  the  provisions  of  the  act  of  March  29,  1894  (28  Stat.  L.,  47),  which  will  be  found  k 
the  chapter  entitled  THE  PUBLIC  PROPERTY. 


CHLAJPTER 


THE  SUBSISTENCE  DEPARTMENT. 


Par. 

575.  The  Subsistence  Department ; 

organization. 

576.  Duties. 

577.  Officers  not  to  trade  in  arti- 

cles for  issue  or  sale. 

578.  Subsistence  to   seamen   and 

marines. 

579.  Post  commissary-sergeants. 

580.  The  ration. 

581.  Increase  of  the  ration. 

582.  Enlisted  men  to  receive  one 

ration  daily. 

583.  No  enlisted  man  to  receive 

more  than  one  ration  daily. 

584.  Matrons  and  nurses. 

585.  Coffee  and  sugar  commuted. 


Par. 

586.  Coffee  and  sugar  ration  to  be 

issued  weekly. 

587.  Sales  to  officers  and  enlisted 

men.     Credit  sales. 

588.  Sales  to  be  made  at  cost. 

589.  Sales  of  rations. 

590.  Sales  of  tobacco. 

591.  Exceptional  supplies. 

592.  Proceeds  of  sales  applicable 

to  new  purchases. 

593.  Proceeds  of  sales  available 

for  purchase  of  supplies. 

594.  Appropriations    for  subsist- 

ence applicable  to  purchase 
of  stores  for  sale  to  offi- 
cers, etc. 


575.  The  Subsistence  Department  of   the  Army  shall  en™e 
consist  of  one  Commissary-General  of  Subsistence,  withjJJJ*'  orKani 
the  rank  of  brigadier-general;  two  assistant  commissaries-  ^'J^V^u' °' 
general  of  subsistence,  with  the  rank  of  colonel  of  cavalry ;  334';  June 23,18*74, 

J  7  c.  458,  s.  3,  v.  18, 

three  assistant  commissaries-general  of  subsistence,  with  P.  244  •,  F<&.  ^2, 
the  rank  of  lieutenant-colonel  of  cavalry;  eight  commis-    se'c.ii40,ksJ 
saries  of  subsistence,  with  the  rank  of  major  of  cavalry ; 
and  eight  commissaries  of  subsistence,  with  the  rank  of 
captain  of  cavalry.1 

'The  Department  was  reorganized  by  the  act  of  June  23,  1874  (18  Stat.  L.,  244) 
which  provided  that  the  number  of  lieutenant-colonels  should  hereafter  be  fixed  at 
three  and  the  number  of  captains  at  twelve;  by  the  act  of  February  12,  1895  (28, 
Stat.  L.,  656),  the  number  of  captains  was  reduced  to  eight.  The  requirement  of  the 
act  of  March  3, 1883  (22  Stat.  L.,  457),  authorizing  appointments  to  this  Department 
from  civil  life,  was  repealed  by  the  act  of  August  6,  1894  (28  Stat.  L.,  234).  Appoint- 
ments to  the  lowest  grade  are  now  required  to  be  made  from  the  next  lower  grade 
in  the  line  of  the  Army.  For  general  provisions  respecting  appointments  and  pro- 
motions in  this  Department,  see  the  chapter  entitled  THE  STAFF  DEPARTMENTS. 

GENERAL  DUTIES. 

The  Subsistence  Department,  under  the  direction  of  the  Secretary  of  War,  pro- 
vides for  the  distribution  and  expenditure  of  funds  appropriated  for  subsisting 
enlisted  men  and  for  purchasing  articles  kept  for  sale  to  officers  and  enlisted  men. 
The  Ccmmissary-General  furnishes  lists  of  articles  authorized  to  be  kept  for  sale, 
and  gives  instructions  for  procuring,  distributing,  issuing,  selling,  and  accounting 
for  all  subsistence  supplies.  (Par.  1226,  A.  R.,  1895.) 

Subsistence  supplies  comprise— 

(1)  Subsistence  stores,  consisting  of  articles  composing  the  ration  and  those  fur- 
nished for  sale  to  officers  and  enlisted  men,  also  lantern  candles  for  stable  use,  forage 
for  beef  cattle,  and  coarse  salt  for  public  animals  and  rebrining. 

(2)  Subsistence  property,  consisting  of  the  necessary  means  for  handling,  preserv- 
ing, issuing,  selling,  and  accounting  for  these  stores.    (Par.  1230,  ibid.) 


206  THE   MILITARY   LAWS   OP  THE   UNITED   STATES. 

Duties,  576.  it  shall  be  the  duty  of  the  officers  of  the  Subsistence 

Apr.  14,  1818,  c. 

427  8Mar  3'  IBS?'  ^ePartmen^?  under  the  direction  of  the  Secretary  of  War, 
c.  49,  s.i',  v.4,  pi  to  purchase  and  issue  to  the  Army  such  supplies  as  enter 
sec.  ii4i,  K.S.  into  the  composition  of  the  ration.1 

8a?t°icie8  ^'  ^°  on^cer  belonging  to  the  Subsistence  Department, 
s^sue  or  sale.  or  doing  the  duty  of  a  subsistence  officer,  shall  be  con- 
6i,  s.  9,  v.  s,  jp.'  cerned,  directly  or  indirectly,  in  the  purchase  or  sale  of  any 
c.  49,  s.  i.vl  4,  pi  article  entering  into  the  composition  of  the  ration  allowed 
c.  si,  s.  e.V.'is,  pi  to  troops  in  the  service  of  the  United  States,  or  of  any 

497;  July  28,  1866,  *        .  j 

c.299,  8.25,v.  14,  article  designated  by  the  inspectors-general  of  the  Army, 
p'lec.'  use,  R.S.  and  furnished  for  sale  to  officers  and  enlisted  men  at  cost 
prices,  or  of  tobacco  furnished  for  sale  to  enlisted  men, 
except  on  account  of  the  United  States  ;  nor  shall  any  such 
officer  take  or  apply  to  his  own  use  any  gain  or  emolument 
for  negotiating  or  transacting  any  business  connected  with 
the  duties  of  his  office,  other  than  that  which  may  be  allowed 
by  law. 

seam^n^dml0  578<  The  officers  of  tne  Subsistence  Department  shall, 
"Sec  1143  B  s  uPon  ^e  requisition  of  the  naval  or  marine  officer  com- 
manding any  detachment  of  seamen  or  marines  under  orders 
to  act  on  shore,  in  co-operation  with  the  land  troops,  and 
during  the  time  such  detachment  is  so  acting  or  proceeding 
to  act,  furnish  rations  to  the  officers,  seamen,  and  marines 
of  the  same. 

POST   COMMISSARY-SERGEANTS. 


sarv  ser  St?8"  *^*  ^e  Secretary  °^  ^ar  *s  authorized  to  select  from 
Mar.  3,  1873,  c.  the  sergeants  of  the  line  of  the  Army  who  shall  have  faith- 
sec.'  nil',  B.S.  fully  served  therein  five  years,  three  years  of  which  in  the 
grade  of  non-commissioned  officers,  as  many  commissary- 
sergeants  as  the  service  may  require,  not  to  exceed  one  for 
each  military  post  or  place  of  deposit  of  subsistence  sup- 
plies, whose  duty  it  shall  be  to  receive  and  preserve  the 
subsistence  supplies  at  the  posts,  under  the  direction  of 
the  proper  officers  of  the  Subsistence  Department,  and 
under  such  regulations  as  shall  be  prescribed  by  the  Secre- 
tary of  War.  The  commissary-  sergeants  hereby  authorized 
shall  be  subject  to  the  rules  and  articles  of  war,  and  shall 
receive  for  their  services  the  same  pay  and  allowances  as 
ordnance-sergeants.2 

1  For  general  provisions  respecting  the  procurement  of  supplies,  see  the  chapter 
entitled  CONTRACTS  AND  PURCHASES;  see  also  the  chapter  entitled  THE  QUARTER- 
MASTER'S DEPARTMENT. 

2  The  act  of  June  30,  1882  (22  Stat.  L.,  123),  authorizes  the  detail  of  one  commissary- 
sergeant  to  act  as  assistant  to  the  commissary  of  cadets  at  the  Military  Academy. 

CIVIL  EMPLOYEES. 

The  employment  of  civilians  in  the  Subsistence  Department  is  regulated  by  the 
annual  acts  of  appropriation.  The  amount  to  be  expended  for  such  services  was  fixed 
at$105.000  in  the  acts  of  March  3,  1883,  July  5,  1884,  March  3,  1885,  and  June  30,  1886; 
at  $110,000  by  the  acts  of  February  9,  1887,  September  22,  1888,  March  2,  1889.  June 
13,  1890,  February  24,  1891,  July  16,  1892,  and  February  27,  1893,  and  at  $100,000  by 
the  acts  of  August  6,  1894,  February  12,  1895,  and  March  16,  1896. 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES. 


207 


THE  KATION. 


580.  Each  ration  shall  consist  of  one  pound  and  a  quarter 
of  beef  or  three-quarters  of  a  pound  of  pork,  eighteen 


Jke  ration^  c 
.  a  e.VJ.p.  134  j 
ounces  of  bread  or  flour,  and  at  the  rate  of  ten  pounds  of  s"?!  v.  5,  pC25s! 

-,          /.  /»        ,,       „          June  21,  1860,  c. 

conee,  nlteen  pounds  01   sugar,  two  quarts  01  salt,  four  163,  s  4,  v  12,  p 
quarts  of  vinegar,  four  ounces  of  pepper,  four  pounds  ofc.is.s.Yi  v.il,6p' 
soap,  and  one  pound  and  a  naif  of  candles  to  every  hundred  71$ec.ii46,B.  s. 
rations.    The  President  may  make  such  alterations  in  the 
component  parts  of  the  ration  as  a  due  regard  to  the  health 
and  comfort  of  the  Aimy  and  economy  may  require.1 


THE  RATION. 


A  ration  is  the  allowance  for  subsistence  of  one  person  for  one  day,  and  consists 
of  the  meat,  the  bread,  the  vegetable,  the  coffee  and  sugar,  the  seasoning,  and  the 
soap  and  candle  components.  (Par.  1251,  A.  R.,  1895. )  See  also  Par.  1258.  ibid. 

The  kinds  and  quantities  of  articles  composing  the  ration  for'troops  where  cook- 
ing is  practicable,  and  the  quantities  computed  for  100  rations,  are  as  follows  (Par. 
1253,  ibid.) ; 


Articles. 

Quantities 
per  ration. 

Quantities  per  100 
rations. 

MEAT  COMPONENTS. 

Ozs. 
20 

Gills. 

Lbs. 
125 

125 
75 

75 

Ozs. 

Galls. 

or  fresh  mutton,  when  the  cost  does  not 

20 

12 

12 
22 

137 

87 
112 
112 

112 
112 
100 
125 

4 

15 
15 

10 
10 

100 

100 

100 

10 
8 
2 
15 

8 

8 
8 
8 

8 
8 

or,   when  meat  can  not  be   furnished, 

14 

or  pickled  fish 

18 

18 



BREAD  COMPONENTS. 

Flour                                                    ... 

18 

18 

16 

20 

Baking  powder  for  troops  in  the  field,  when 
necessary  to  enable  them  to  bake  their 
own  bread           

18 

VEGETABLE  COMPONENTS. 

Beans                                                ••• 

2g 

or  pease     

2§ 

IK 

or  hominy  

IB 

Potatoes  

16 

or  potatoes,  12$  ounces,  and  onions,  3£ 
ounces    

16 

16 
IB 

or  potatoes,  lljt  ounces,  and  canned  to 
matoes,   4|    ounces;    or   4|  ounces   of 
other   fresh    vegetables    not   canned, 
when  they  can  beobtained  in  the  vicin- 
ity of  the    post  or  transported  in  a 
wholesome  condition  from  a  distance.  .  . 

COFFEE  AND  SUGAR  COMPONENTS. 

Coffee,  green  



or  roasted  coffee      .  .  

ls7B 

Sugar 

2§ 

ii 

& 

or  molasses  

2 

2 

1 

or  cane  sirup   

SEASONING  COMPONENTS. 

Vinegar  .  .  . 

Salt.  

16 

4 

Pepper,  black  

1 

4 

SOAP  AND  CANDLE  COMPONENTS. 

Soap  

u 

& 

4 

Candles  (when  illuminating  oil  is  not  fur- 
nished  by  the    Quartermaster's    Depart- 
ment)   

1 

8 

Enlisted  men     532.  Enlisted  men  shall  be  entitled  to  receive  one  ration 

to     receive    one 
ration  daily. 
Feb.  8, 1815,v.3, 


208  THE    MILITARY    LAWS    OP    THE    UNITED    STATES. 

raSoT"186  of  the     581.  That  the  Army  ration  now  provided  by  law  shall  be 
sec.  5,  june^ie,  increased  by  the  addition  thereto  of  one  pound  of  vege- 
tables, the  proportion  to  be  fixed  by  the  Secretary  of  War. 
Sec.  5,  act  of  June  16,  1890  (26  Stat.  L.,  158). 

582.  Enlisted  men  sha 
daily.1 

T>  "  204  • '  Mar.    2   1821,  v.  3,  p.  615 ;  July  5, 1862,  v.  12, 
p!  508;'  July  16,  1892,  v.  27,  p.  178.    Sec.  1293,  R.  S. 

THE  EMERGENCY  RATION. 

Under  the  authority  vested  in  him  by  section  1146,  Revised  Statutes,  the  President 
has  established  an  emergency  ration  for  troops  operating  for  short  periods  under  cir- 
cumstances which  require  them  to  depend  upon  supplies  carried  upon  their  persons. 
Its  component  parts  are  as  follows :  Bacon,  10  ounces ;  hard  bread,  16  ounces ;  pea  meal; 
4  ounces,  or  an  equivalent  in  approved  material  for  making  soup ;  coffee,  roasted  and 
ground,  2  ounces,  or  tea,  Bounce;  saccharin,  4  grains;  salt,  0.64  ounce;  pepper,  0.04 
ounce ;  tobacco,  i  ounce.  (G.  O.  49,  A.  G.  O.,  1896.) 

The  emergency  ration  will  be  resorted  to  only  on  occasions  arising  in  active  opera- 
tions when  the  use  of  the  regularly  established  ration  may  be  impracticable;  that, 
although  its  nutritive  qualities  permit  its  use  on  half  allowance,  it  will  not  be  so 
used  except  in  cases  of  overruling  necessity,  and  never  for  a  longer  period  than  ten 
days ;  and  that  not  more  than  five  days'  emergency  rations  be  carried  on  the  person 
at  one  time.  (Par.  2,  ibid.) 

TRAVEL  RATION. 

When  troops  travel  otherwise  than  by  marching,  or  when  for  short  periods  they 
are  separated  from  cooking  facilities  and  do  not  carry  cooked  rations,  the  following 
articles  will  be  issued  in  lieu  of  all  components  of  the  ordinary  ration.  They  consti- 
tute the  travel  ration. 


Articles. 


Soft  bread pounds.. 

or  hard  bread do 

Beef,  canned do 

Baked  beans,  1-pound  cans number. . 

or  baked  beans,  3-pound  cans do 

Coffee,  roasted pounds.. 

Sugar .do 


Per  100 
rations. 


U2J 
100 

75 

33 

15 
8 

15 


After  troops  have  been  subsisted  upon  the  travel  ration  for  four  consecutive  days, 
they  may  be  allowed  canned  tomatoes  in  addition  to  the  travel  ration  at  the  rate  of 
one  pound  of  tomatoes  per  man  per  day.  When  they  arrive  at  their  destination  or 
rejoin  their  station,  subsistence  upon  the  ordinary  ration  will  be  resumed  immedi- 
ately, and  any  unconsumed  articles  in  good  condition  which  they  may  have  on  hand 
will  not  be  sold  as  savings,  but  will  be  turned  over  to  the  commissary.  (Par.  1256, 
A.  E.,  1895.) 

LIQUID  COFFEE. 

When  enlisted  men  supplied  with  cooked  or  travel  rations  travel  unaccompanied 
by  an  officer,  funds  for  the  purchase  of  liquid  coffee  in  lieu  of  the  coffee  and  sugar 
portion  of  the  travel  ration,  at  the  rate  of  21  cents  per  day  for  the  anticipated  num- 
ber of  days'  travel,  may,  on  the  order  of  the  commanding  officer  who  directs  the 
journey,  be  paid  to  each  man,  and  his  receipt  therefor  taken  on  a  receipt  roll,  which 
must  be  accompanied  by  a  copy  of  the  order.  When  enlisted  men  supplied  with 
cooked  or  travel  rations  travel  under  command  of  an  officer,  funds  at  the  same  rate, 
for  the  same  purpose,  will  be  transferred  to  him,  to  be  disbursed  and  accounted  for. 
At  the  end  of  the  journey  the  unexpended  balance,  if  any,  will  be  transferred  to  the 
nearest  commissary.  (Par.  1257,  A.  R.,  1895.) 

In  adjusting  charges  to  be  made  against  enlisted  men  or  others  on  account  of 
increased  expense  to  the  Government  for  their  subsistence,  the  value  of  the  ordi- 
nary ration  will  be  estimated  at  18  cents ;  that  of  the  travel  ration  at  40  cents. 

Enlisted  men  and  hospital  matrons  are  each  entitled  to  one  i*ation  per  day.  When 
the  circumstances  of  their  service  make  it  necessary,  civilians  employed  with  the 
Army  may  each  be  allowed  one  ration  per  day.  (Par.  1252,  ibid.) 

Small  quantities  of  food  (articles  of  the  ration)  may  on  the  order  of  the  command- 
ing officer,  be  issued  to  Indians  visiting  a  military  post.  The  order  will  state  the 
number  of  Indians  and  their  tribe,  number  of  days  for  which  the  issues  are  made, 
quantities,  and  necessity  for  the  issues.  Indians  will  not  be  continuously  subsisted 

1  Section  1293,  Revised  Statutes,  which  authorized  the  issue  of  one  and  a  half 
rations  daily  to  sergeants  and  corporals  of  ordnance,  was  repealed  by  the  act  of  July 
16,  1892  (27  Stat.  L.,  178).  So  much  of  section  1295,  Revised  Statutes,  as  authorized 
the  issue  of  rations  to  laundresses  was  repealed  by  the  operation  of  section  5  of  the 
act  of  June  17,  1878  (20  Stat.  L.,  150). 


THE    MILITARY   LAWS    OF   THE    UNITED   STATES. 


209 


583.  Hereafter  no  enlisted  man  shall  be  entitled  to  more  27Julf7186'  1892» v- 
than  one  ration  daily.    Act  July  16, 1892  (27  Stat.  L.,  178). 

584.  Hospital  matrons  and  the  nurses  employed  in  post    Matrons  and 

nurses. 

or  regimental  hospitals,  shall  be  entitled  to  receive  one    Mar.  ic,  1302,  c. 

9,  s.  5,  v.  2,  p.  134 ; 

ration  daily.  J  une  i s,  isis,  s.  5, 

v.  20,  p.  150. 

in  this  manner  except  by  authority  of  the  Secretary  of  War.  A  copy  of  the  order 
directing  the  issue  will  accompany  the  abstract  of  issues.  (Par.  1266,  ibid.) 

Subsistence  will  not  bo  issued  to  destitute  persons  except  when  the  commanding 
officer  assumes  the  responsibility  of  ordering  the  issue  to  relieve  starvation  or 
extreme  sutt'ering.  In  such  cases  the  circumstances  will  be  fully  stated  m  the  order. 
(Par.  1267,  ibid.) 

At  posts  and  stations  where  illuminating  oil  is  furnished  by  the  quartermaster, 
candles  are  not  issued  as  part  of  the  ration  except  to  individuals  whom  it  is  not 
practicable  to  supply  with  oil.  (Par.  1255,  ibid.) 


OTHER  ISSUES  OF  SUBSISTENCE  STORES. 

The  following  issues  are  made  when  necessary  for  the  public  service: 


Articles. 


Allowance. 


Quan- 
tity in 
bulk. 


Equiv- 
alent 
in  ra- 
tions. 


1.  Candles,  when  oil  for  illuminating  purposes  is  not  furnished  by 

the  Quartermaster's  Department:  Lbs. 

To  headquarters  of  a  department,  per  month 30       2, 000 

To  headquarters  in  the  field— 
Of  each  separate  army,  when  composed  of  more  than  one 

corps,per  month 40       2,667 

Of  an  army  corps,  per  mouth 30       2, 000 

Of  a  division,  per  month 20       1,333 

Of  a  brigade  or  regiment,  per  month 10 

Of  a  battalion  serving  separately  from  regimental  headquar- 
ters, per  month 10  667 

To  offices  and  storerooms — 

Of  the  chief  quartermaster  or  chief  commissary  of  a  depart- 
ment or  depot  of  supply,  from  April  1  to  September  30,  per 

month 10 

Of  a  quartermaster  or  commissary  of  a  post,  from  April  1  to 

September  30,  per  month ' 5          333 

From  October  1  to  March  31,  not  exceeding  double  the  above 

quantities. 
To  guards — 
To  the  principal  guard  of  each  camp,  per  month 12          800 

2.  Lantern  candles : 

To  stables- 
Such  number  of  pounds  as  the  commanding  officer  may  order 
as  necessary. 

3.  Salt: 

For  public  animals —  Ozs. 

For  each  animal,  per  week 2  3 

Or,  when  in  the  opinion  of  the  commanding  officer  so  much 
is  necessary,  not  exceeding,  per  month 12  19 

4.  Yinegar: 

For  every  100  public  horses  or  mules,  for  sanitary  purposes — 
Such  amount  as  the  commanding  officer  may  order  as  ueces-     Galls. 
sary,  not  exceeding,  per  week 2          200 

5.  Flour: 

For  paste  used  in  target  practice — 

Such  quantity  as  the  commanding  officer  may  order  as  neces- 
sary, not  to  exceed  50  pounds  for  each  troop,  battery,  or 
company  during  the  target-practice  season. 

6.  Matches: 

For  lighting  fires  and  lamps  for  which  fuel  and  illuminating 

supplies  are  issued — 
Such  quantities  as  the  commanding  officer  may  order  as  nec- 


For  statutory  authority  for  issues  of  subsistence  stores  to  Indians  see  paragraph 
1441,  post;  see,  also,  paragraph  1266,  A .  B,.,  1895.  llations  furnished  for  the  use  of  the 
army,  being  the  public  property  of  the  United  Stales,  can  only  bo  disposed  of,  or  issued, 
in  accordance  with  law.  Issues  to  destitute  citizens,  not  being  so  authorized,  are 
made  on  the  responsibility  of  the  officer  ordering  the  same.  See  in  this  connection 
paragraph  1267,  A.  R.,  1895. 

The  issues  are  made  on  ration  returns  signed  by  the  officer  in  charge  and  issues 
ordered  by  the  commanding  officer,  the  latter  determining  what  quantities  within 

1919 14 


210  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

coffee  and     535.  The  Secretary  of  War  may  commute  the  ration  of 

sugar  may  be 

commuted.      ^  coffee  and  sugar  for  the  extract  of  coffee  combined  with 

iss.s.'ioiv.  12,  p!  milk  and  sugar,  if  he  shall  believe  such  commutation  to  be 

Sec.iU7>R.s.  conducive  to  the  health  and  comfort  of  the  Army,  and  not 

to  be  more  expensive  to  the  Government  than  the  present 

ration;  provided,  the  same  shall  be  acceptable  to  the  men. 

fe!"S5onn  to°be     S86-  The  ration  of  sugar  and  coffee  where  issued  in  kind, 

^j^y  5^838%.  snaN>  when  the  convenience  of  the  service  permits,  be  is- 

162,  8.  17,  v.  5,'  p.'  sue(j  weekly. 

Sec.  1148,  B.  S. 

PURCHASES   AND   SALES   OF   SUBSISTENCE   STORES. 

andaenii80te°dffimen8     587.  The  officers  of  the  Subsistence  Department  shall 
Juiv^fsSi  o.  procure,  and  keep  for  sale  to  officers  and  enlisted  men  at 
299,  8:25,  V.H.P.  COS£  prices,  for  cash  or  on  credit,  such  articles  as  may,  from 
sec.  1144,  it.  s.  time  to  time,  be  designated  by  the  inspectors-general  of 
the  Army.     An  account  of  all  sales  on  credit  shall  be  kept, 
and  the  amounts  due  for  the  same  shall  be  reported  monthly 
to  the  Paymaster-General.1 
be     ^®'  That  hereafter  all  sales  of  subsistence  supplies  to 


23Jnlio8'  188*'  v'  on^cers  an(l  enlisted  men  shall  be  made  at  cost  price  only; 
and  the  cost  price  of  each  article  shall  be  understood,  in  all 
cases  of  such  sales,  to  be  the  invoice  price  of  the  last  lot 
of  that  article  received  by  the  officer  making  the  sale  prior 
to  the  first  day  of  the  month  in  which  the  sale  is  made.2 
Act  of  July  5,  1884  (23  Stat.  L.,  108). 
saiesofrations.  589.  Commissioned  officers  of  the  Army,  serving  in  the 

jVlRF.   o,   louO,   C, 

si,  s.  5,  v.  is,  p.  field,  may  purchase  rations  for  their  own  use,  from  any 

sec.  1145,  R.S.  commissary  of  subsistence,  on  credit,  at  cost  prices;  and 

the  amounts   due  for  such  purchases  shall  be  reported 

monthly  to  the  Paymaster-General.2 

°f  to~    ®*®'  Tobacco  shall  be  furnished  to  the  enlisted  men  by 
Mar.  3,  1865,  c.  the  commissaries  of  subsistence,  at  cost  prices,  exclusive 
497  8  '  p'  of  the  cost  of  transportation,  in  such  quantities  as  they 

sec.  1149,  R.S.  may  requjre?  no£  exceeding  sixteen  ounces  per  month.2 

B*j££tiOBal  591.  Hereafter  exceptional  articles  of  subsistence  stores 
2t  1895,  v.  for  officers  and  enlisted  men,  which  are  to  be  paid  for  by 
them,  regardless  of  condition  upon  arrival  at  posts,  may, 
under  regulations  to  be  prescribed  by  the  Secretary  of 
War,  be  obtained  by  open  purchase  without  advertising. 
Act  of  February  12,  1895  (28  Stat.  L.,  658). 

the  limits  above  prescribed  shall  be  issued.  Candles,  salt,  vinegar,  and  flour  for  the 
above  purposes  are  entered  on  the  ration  returns  and  on  the  abstract  of  issues  in 
terms  of  rations,  lantern  candles  in  pounds  and  matches  in  boxes.  The  returns  and 
abstracts  show  for  what  places  the  candles  are  intended  and  the  number  of  animals 
and  period  for  which  salt  and  vinegar  are  drawn,  giving  the  troop,  battery,  etc.,  to 
which  they  belong.  (Par.  1265,  A.  K.,  1895.) 

1  The  funds  received  from  sales  made  in  accordance  with  sections  3618  and  3692, 
Revised  Statutes,  and  the  act  of  March  3,  1875  (paragraphs  592.  593,  and  594,  post), 
are  by  those  statutes  made  available  for  purchases  of  similar  supplies. 

8  The  acts  of  June  23,  1879,  and  May  4,  1880,  contained  the  requirement  that  ten 
per  cent  of  the  cost  price  should  be  added  to  the  cost  of  all  stores  (except  tobacco) 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  211 


PROCEEDS  OF   SALES. 

592.  All  proceeds  of  sales  of  old  material,  condemned    Proceeds  of 

sales   available 

stores,  supplies,  or  other  public  property  of  any  kind,  ex-  for  new  pur- 
eept  the  proceeds  of  the  sale  or  leasing  of  marine  hospitals,  sec.36is,B.s. 
or  of  the  sales  of  revenue  cutters,  or  of  the  sales  of  com- 
missary stores  to  the  officers  and  enlisted  men  of  the  Army, 
or  of  materials,  stores,  or  supplies  sold  to  officers  and 
soldiers  of  the  Army,  or  of  the  sale  of  condemned  Navy 
clothing,  or  of  sales  of  materials,  stores,  or  supplies  to  any 
exploring  or  surveying  expedition  authorized  by  law,  shall 
be  deposited  and  covered  into  the  Treasury  as  miscellaneous 
receipts,  on  account  of  proceeds  of  Government  property, 
and  shall  not  be  withdrawn  or  applied,  except  in  conse- 
quence of  an  appropriation  made  by  law. 

593.  All   moneys  received   from  the  leasing  or  sale  of   Proceeds  of 

J  certain    sales 

marine  hospitals,  or  the  sale  of  revenue-cutters,  or  from  available  for  Pur- 

.  .  chase  of  supplies. 

the  sale  of  commissary  stores  to  the  officers  and  enlisted  Mar.  3,  1347,  c. 
men  of  the  Army,  [or  from  the  sale  of  materials,  stores,  or  Apr.  20,'  ifte,  c! 
supplies  sold  to  officers  and  soldiers  of  the  Army,]  or  from  4o';8jiiy2s»i  isee,' 
sales  of  condemned  clothing  of  the  Navy,  or  from  sales  of  p'.2336;8'Ma^  ^ 
materials,  stores,  or  supplies  to  any  exploring  or  survey-  Jf^  ^june'  I,' 
ing  expedition  authorized  by  law,  shall  respectively  revert  p87|j7c:  ''1' 


to  that  appropriation  out  of  which  they  were  originally  p87^8c: 
expended,  and  shall  be  applied  to  the  purposes  for  which  p^'10c;  ^  v-  g- 
they  are  appropriated  by  law.  is??,  c.  69,  v.  19,  P.  249.  sec.b692,R.s: 

594.  That  so  much  of  the  appropriation  for  subsistence   Appropriations 
of  the  Army  as  may  be  necessary  may  be  applied  to  the 


purchase  of  subsistence- stores  for  sale  to  officers  for  the  Sr^saie1  to^n? 
use  of  themselves  and  their  families,  and  to  commanders  C6Maret3',  is? 5,  v 
of  companies  or  other  organizations,  for  the  use  of  the18'p>410< 
enlisted  men  of  their  companies  or  organizations,  and  the 
proceeds  of  all  sales  of  subsistence-supplies  shall  here- 
after be  exempt  from  being  covered  into  the  Treasury  and 
shall  be  immediately  available  for  the  purchase  of  fresh 
supplies.1    Act  of  March  5,  1875  (18  Stat.  L.,  410). 

sold  to  officers  and  enlisted  men,  to  cover  wastage,  transportation,  and  other  inci- 
dental charges.  (21  Stat.  L.,  32,  111 .)  This  provision  was  repealed  by  the  act  of  July 
5,  1884,  above  cited.  To  a  civilian  employed  with  the  Army  at  a  remote  place, 
where  food  can  not  otherwise  be  procured,  stores  will  be  sold  for  cash,  in  limited 
quantities,  for  his  own  use,  at  invoice  or  contract  prices  with  10  per  cent  added. 
(Par.  1284,  A.  R.,  1895.)  The  amounts  due  for  such  sales  to  be  deducted  from  the  next 
payment  to  the  officer  or  enlisted  man.  See  paragraphs  659,  660,  and  661,  post. 

]  Under  the  act  of  March  3,  1875  (18  Stat.  L.,  410),  the  proceeds  of  all  sales  of  sub- 
sistence supplies  are  exempt  from  being  covered  into  the  Treasury,  and  are  immedi- 
ately available  for  the  purchase  of  fresh  supplies.  (3  Dig.  Comp.'Dec,,  324.) 

UndtM*  the  act  of  March  3,  1875  (18  Stat.  L.,  410),  the  proceeds  of  all  sales  of  sub- 
sistence supplies,  being  exempt  from  being  covered  into  the  Treasury,  revert  to  the 
appropriation  ''Subsistence  of  the  Army,"  out  of  which  they  were  originally 
expended,  and  are  applicable  to  the  purpose  for  which  they  are  appropriated  by  law, 
namely,  the  purchase  of  fresh  supplies  only  during  the  fiscal  year  for  which  the 


212 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


feSugar  and  cof-     595.  For  each  ration  of  sugar  and  coffee  not  issued,  nor 
July  5, 1838,  c.  commuted  for  the  extract  of  coffee  combined  with  milk  and 

162,8.  17,  v.  5,  p. 

258.  sugar,  enlisted  men  shall  be  paid  in  money.1 

Sec.  1294j  R.  &. 

appropriation  to  which  they  revert  is  available,  for  which  purpose  they  are  immedi- 
ately available  without  the  intervention  of  a  repay  warrant.     (Ibid.) 

The  subsistence  supplies  contemplated  by  the  provision  of  the  act  of  March  3, 
1875  (18  Stat.  L.,410),  declaring  the  proceeds  of  all  sales  of  such  supplies  immedi- 
ately available  for  the  purchase  of  fresh  supplies,  comprise  not  only  the  supplies 
denominated  "  subsistence  stores,"  but  also  the  necessary  means  for  handling,  pre- 
serving, issuing,  selling,  and  accounting  for  these  supplies,  as  tools,  scales,  measures, 
utensils,  stationery,  safes,  office  furniture,  etc.  (Ibid.,  344.) 

1  SAVINGS. 

Articles  of  the  ration  (excluding  fresh  vegetables,  bread,  and  baking  powder)  due 
a  bakery,  a  company,  or  any  organization,  not  needed  for  consumption,  will  be 
retained  by  the  commissary  if  required  for  reissue,  and  will  be  purchased  as  savings 
at  the  invoice  prices.  Savings  and  sales  of  fresh  beef  (except  of  that  issued  for  the 
sick  in  hospital,  the  detachment  of  the  hospital  corps,  and  the  hospital  matron  serv- 
ing therein)  are  prohibited;  baking  powder  issued  but  not  used  will  be  returned  to 
the  commissary.  The  commissary  will  purchase  the  savings  of  hospitals  (including 
fi'esh  beef)  at  cost  prices  when  the  surgeon  in  charge  so  desires,  but  will  not  pur- 
chase savings  of  companies,  bakeries,  or  any  organization  when  public  loss  would 
result.  When  not  required  for  reissue,  savings  may  be  sold  to  any  person.  (Par. 
1269,  A.  R.,  1895.) 

Savings  purchased  by  the  commissary  will  be  entered  on  a  receipt  roll,  in  dupli- 
cate, in  the  name  of  the  organization  to  which  they  belong,  and  the  money  value 
receipted  for  by  the  officer  in  charge  thereof.  Payments  for  hospital  savings  will  be 
made  to  the  surgeon  of  the  post  or  station.  (Par.  1270,  ibid.) 

If  savings  are  not  paid  for  by  the  commissary  in  the  month  in  which  accumulated, 
the  proper  organization  will  be  furnished  with  an  extract,  in  duplicate,  of  the  receipt 
roll,  showing  stores  received  from  it  and  the  amount  due,  which,  duly  certified  by 
the  commissary  and  approved  by  the  commanding  officer,  will  be  presented  for  pay- 
ment to  any  commissary  having  funds  for  the  purpose.  (Par.  1271,  ibid.) 

When  troops  at  a  post  raise  their  own  vegetables,  or  when  they  are  not  supplied 
with  fresh  vegetables  in  kind  by  the  commissary,  commutation  will  be  allowed  at 
the  prices  of  potatoes  and  onions  in  the  vicinity' of  the  post  or  in  the  market  from 
which  the  post  is  supplied,  in  the  proportion  of  80  per  cent  of  potatoes  and  20  per 
cent  of  onions,  the  commutation  prices  being  determined  monthly  by  the  Subsistence 
Department.  (Par.  1254,  ibid.)  • 

COMMUTATION. 

The  principle  which  governs  commutation  of  rations  in  lieu  of  subsistence  is  that 
commutation  will  not  be  allowed  where  subsistence  in  kind  is  provided  by  Govern- 
ment. (Jaegle  v.  U.  S.,  28  C.  Cls.  R.,  133.) 

Authority  to  establish  the  rates  of  the  allowance  for  commutation  of  rations  has 
not  been  given  by  statute,  but  the  st- rates  have  been  left  to  be  fixed  by  Army  Regula- 
tions. But  these  amounts  are  recognized  and  sanctioned  in  the  provisions  of  thr 
Army  appropriation  acts  relating  to  the  Subsistence  Department.  (Dig.  J.  A.  Gen. 
p.  579,  par.  71.) 

Paragraph  1273,  Army  Regulations,  1895,  in  directing  that  commutation  in  lieu  . 
rations  shall  not  be  allowed  to  soldiers  where  subsistence  in  kind  is  provided  by  tl 
Government,  excepts  cases  where  the  same  is  specially  authorized  by  the  Secretar 
oT  War.  Held,  that  this  part  of  the  Regulations  was  substantially  superseded  b 
the  statutory  provision  of  the  existing  Army  appropriation  act  of  February  27, 1? 
which  enumerates  several  specific  classes  of  enlisted  men  as  persons  to  whom  tl 
payment  may  be  made  without  reserving  to  the  Secretary  of  War  any  authority 
extend  the  privilege.  (Par.  72,  ibid.) 

The  allowance  for  commutation  of  rations,  made  payable,  by  the  Army  appropi 
tion  act  of  February  27,  1893,  "to  enlisted  men  traveling  on  detached  duty,  when 
Is  impracticable  to  carry  rations,"  etc.,  held  to  be  restricted  to  the  period  covered  bj 
the  travel,  and  not  to  be  payable  to  a  soldier  for  commutation  of  rations  consum 
at  the  destination  where  he  was  placed  by  his  orders  on  detached  duty,  viz,  for  f< 
days'  board  at  a  hotel  at  the  terminus  of  his  travel.  (Par.  73,  ibid.) 

A  claim  for  commutation  of  rations  on  furlough  can  not  be  allowed  without  tl 
production  of  the  furlough  issued,  or  other  satisfactory  evidence  that  payment  ha 
not  been  made.  The  burden  of  proof  rests  upon  the  claimant  to  establish  the  valit 
ity  of  his  claim  by  something  more  than  his  unsupported  statements.  (1  Compt 
Dec.,  513.) 

Commutation  of  rations  may  be  allowed  at  the  following  rates,  under  the  com 
tions  mentioned,  viz: 


Conditions. 


1.  To  a  soldier  at  the  conclusion  of  his  furlough,  provided  that  on  or  before 

the  last  day  thereof  lie  has  reported  at  his  proper  station  or  has  been 
discharged — 

2.  To  sergeants  of  the  post  noncommissioned  staff  (and  soldiers  acting  as 

such)  on  duty  at  forts  and  stations  where  there  are  no  other  troops 

3.  To  a  soldier  on  detached  duty,  stationed  in  a  city  or  town  where  sub- 

sistence is  not  furnished  by  the  Government 


Rat 
per< 
each. 


$0. 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 


213 


596.  The  line  officers  of  the  Army  shall  superintend  the 
cooking  done  for  the  enlisted  men.1 


Mar.  3,  1863,  c. 

78,s.8,v.l2,p.744. 

Sec.  1234,  R.S. 


Conditions. 


4.  To  a  soldier  traveling  under  orders  from  a  place  or  station  at  which  his 

rations  have  been  regularly  commuted 

5.  To  enlisted  men  traveling  under  orders  (when  the  journey  can  not  be  per 

formed  in  twenty-tour  hours  and  it  is  impracticable  to' carry  rations  of 
any  kind),  as  follows- 

To  an  enlisted  man  traveling  alone 

To  two  enlisted  men  traveling  as  a  detachment  or  traveling  as  a  guard 
to  an  insane  patient  or  military  prisoner,  each 

To  an  insane  patient  or  military  prisoner  traveling  under  guard  of 
one  or  two  enlisted  men,  to  be  paid,  on  the  order  of  the  command- 
ing officer,  in  advance  to  and  to  be  receipted  for  by  the  person  to 
whose  charge  the  patient  or  military  prisoner  is  committed  by  the 
order 


Eate 

per  day 

each. 


$1.50 


1.50 
1.50 


1  50 


(Par.  1272,  A.  E.,  1895  ) 

Commutation  of  rations  will  not  be  allowed  to  enlisted  men  serving  where  sub- 
sistence is  furnished  by  the  Government;  or  traveling  under  orders  when  they  can 
carry  and  cook  their  rations,  or  can  carry  cooked  or  travel  rations ;  or  traveling  under 
orders  by  steamboat  or  steamship  where  the  passage  rates  include  meals;  or  failing 
to  report  at  their  proper  stations  on  or  before  the  last  day  of  furlough  unless  dis- 
charged; or  recruiting  parties  at  their  stations;  nor  to  civil  employees.  (Par.  1273, 
ibid.) 

1  Section  1233,  Revised  Statutes,  which  required  cooks  to  be  detailed,  in  turn,  from 
the  privates  of  each  company  was  repealed  by  the  act  of  June  29,  1879  (20  Stat.  L., 
ch.  24,  p.  276). 


CHAPTER    XIX. 


THE  PAY  DEPARTMENT. 


Par. 

603.  Duties  of  paymasters. 

604. .  Paymasters'  clerks. 

605.  Renewing  bonds  of  paymas- 

ters. 

606.  Payments  to  troops. 

607.  Payment  of  enlisted  men  by 

check. 


Pay  Depart 
ment;  organiza 
tion. 


Vi8 
.3,i875, 


Par. 

597.  The  Pay  Department ;  organ- 

ization. 

598.  Right  of  command. 

599.  Additional  paymasters. 

600.  Service  to  be  temporary. 

601.  Duties  of  Paymaster-General. 

602.  Duties  of  deputy  paymasters- 

general. 

597.  The  Pay  Department  of  the  Army  shall  consist  of 
one  Paymaster- General,  with  the  rank  of  brigadier-general; 
;  two  assistant  paymasters-general,  with  the  rank  of  colonel 
'.  of  cavalry ;  three  deputy  paymasters-general,  with  the  rank 
;of  lieutenant-colonel  of  cavalry;  and  twenty  paymasters, 
Mar.  s,  i875\  J^R!  with  the  rank  of  major  of  cavalry.1 

July'  22    1876,  c.'  222,  v.  19,  p.  95 ;  Mar.  3, 1883,  v.  22,  p.  457 ;  July  5, 1884,  v.  23, 
p.  108 ;  July  16, 1892,  v.  27,  p.  175 ;  Feb.  12, 1895,  v.  28,  p.  655.    Sec.  1182,  R.  S. 

Right  of  com-     598.  Officers  of  the  Pay  Department  shall  not  be  entitled, 
Mar.  3, 1847,  c.  in  virtue  of  their  rank,  to  command  in  the  line  or  in  other 

61,  s.  13,  v.  9,  p. 

185.  ^  staff  corps. 

Additional  pay-     599.  When  volunteers  or  militia  are  called  into  the  serv- 

mju\ey85, 1838,  c.  ice  of  the  United  States,  and  the  officers  of  the  Paymas- 

162,  s.  25,  v.  5,  p.  ^er,s  Department  are  not  deemed  by  the  President  sufficient 

sec.  us*,  B.S.  ^  ^^  punctual  payment  of  the  troops,  he  may  appoint,  by 

and  with  the  advice  and  consent  of  the  Senate,  and  add 

to  said  corps  as  many  paymasters,  to  be  called  additional 

paymasters,  with  the  rank  of  major,  not  exceeding  one  for 

every  two  regiments  of  volunteers  or  militia,  as  he  may 

deem  necessary. 

i  The  act  of  July  22,  187G  (19  Stat.  L.,  95),  fixed  the  rank  of  Paymaster-General  at 
that  of  brigadier -general.  The  act  of  March  3,  1883  (22  Stat.  L.,  457),  provided  that 
-vacancies  in  the  grade  of  lieutenant-colonel  and  major  in  the  Department  should  not 
be  filled,  by  original  appointments,  until  the  Pay  Corps  should  have  been  reduced 
to  forty  paymasters.  The  act  of  July  5,  1884  (23  Stat.  L.,  108),  authorized  the  retire- 
ment of  paymasters  (majors)  on  their  own  application  after  twenty  years'  service, 
and  fixed  the  organization  of  the  Pay  Department  as  follows :  One  Paymaster-Gen- 
eral (brigadier-general),  two  assistant  paymasters-general  (colonels),  three  assistant 
paymasters-general  (lieutenant-colonels),  and  twenty -nine  paymasters  (majors),  and 
provided  that  no  new  appointments  should  be  made  until  the  number  of  majors 
should  have  been  reduced  to  twenty-nine,  and  thereafter  the  number  of  officers 
in  the  Pay  Department  should  not  exceed  thirty -five.  The  act  of  July  16,  1892  (27 
Stat.  L..  175),  fixed  the  number  of  majors  in  the  Department  at  twenty-five.  The 
act  of  February  12,  1895  (28  Stat.  L.,  655),  fixes  the  number  of  majors  and  paymasters 
at  twenty  and  provides  that  there  shall  be  no  appointments  to  the  grade  of  major 
until  the  number  of  paymasters  shall  have  been  reduced  to  twenty.  For  general 
provisions  respecting  promotions  in  this  department,  see  the  chapter  entitled  TUB 
STAFF  DEPARTMENTS. 

214 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  215 


600.  Additional  paymasters  shall  be  retained  in  service  tj^er™°,to  be 
only  so  long  as  they  may  be  required  for  the  payment  of   July  5,  isss,  c. 

....  .  ,  162,  8.  25,  v.  5,  p. 

volunteers  and  militia,  as  provided  herein.  259.   See.ii8o,u.s. 

601.  The  Paymaster-General  shall  perform  the  duties 


his  office  under  the  direction  of  the  President.  9  g  16  v  2  p  135    £rii86,8ii.'  £ 


602.  The  deputy  pay  masters-  general  shall,  in  addition  t°  n 

paying  troops,  superintend  the  payment  of  armies  in  the  geJfarraL3  1847  9 

field  61,  88.  12,  22,  v.  9,  p.  185;   July  19,  1848,  c.  104,  s.  3,  v.9,p.  247;'  Mar!  2,' 

1849,  c.  80,  v.  9,  p.  350  ;  July  28,  1866,  c.  299,  s.  18,  v.  14,  p.  335.     Sec.  1187,  R.  S. 

603.  The  paymasters  and  additional  paymasters  shall  pay    Duties  of  pay- 
the  regular  troops,  and  shall  pay  all  other  troops  in  the    Apr.  24,  me,  c. 
service  of  the  United  States,  when  required  to  do  so  by  fuiy\l*i&2?  ll 
order  of  the  President.1  582  .  Juiy  5,  isss.c.  162,  8.  25,  v.  5,  P.  259.   sect'n'ss',  R.  & 

604.  Paymasters  and  additional    paymasters   shall  be  cl 
allowed  a  capable  noncommissioned  officer  or  private  as  gQ 

clerk.  When  suitable  non-commissioned  officers  or  privates  <™y  iiw&c.iw, 
can  not  be  procured  from  the  line  of  the  Army,  they  are  June  2o,'i864,  c 
authorized,  by  and  with  the  approbation  of  the  Secretary  145'.  June  30,' 
of  War,  to  employ  citizens  as  clerks,  at  a  salary  of  fourteen  ' 

hundred  dollars  a  year.a  Act  of  June  30,  1882  (22  Stat.  L., 
118}. 

605.  All  disbursing  officers  of  the  Pay  Department  shall 

renew  their  bonds,  or  furnish  additional  security,  at  1849  c 

once  in  four  years,  and  as  much  oftener  as  the  President  so 
may  direct.3 

PAYMENTS   TO    TROOPS. 

606.  The  Army  shall  be  paid  in  such  manner  that  the    Payments  to 

J  troops. 

arrears  shall  at  no  time  exceed  two  mouths,  unless  circuin-    Mar.  ie,  1802,  c. 

9,  8  13,  v.  2,  p.  135. 

stances  shall  render  further  arrears  unavoidable  4  8ec.ii89,R.s. 

607.  That  the  Secretary  of  War  is  also  authorized  to  litJSme**°f  ebny' 
arrange  for  the  payment  of  the  enlisted  men  serving  at  Ghjt*  '^'19S3  v 
posts  or  places  where  no  paymaster  is  on  duty,  by  check  or  27>  P-  W5. 

by  currency,  to  be  sent  to  them  by  mail  or  express,  at  the 
expense  and  risk  of  the  United  States.4  Act  of  February 
27,  1893  (27  Stat.  L.,  175). 

'Paymasters  of  the  Army  are  the  financial  agents  of  the  Government,  and  their 
disbursements,  represented  by  vouchers,  are  examined  and  scrutinized  by  the 
Comptroller,  whose  duty  it  is  finally  to  determine  whether  or  not  any  particular 
disbursement  shall  be  credited  to  the  officer.  In  charging  an  officer,  orrefnsing  him 
credit  for  erroneous  disbursements,  the  question  of  proper  care  invariably  enters 
into  consideration  in  arriving  at  a  decision.  The  right  to  determine  that  question  is  a 
most  essential  feature  of  the  functions  of  the  Comptroller.  (3  Dig.  Compt.  Dec.,  11.) 

:For  statutory  provisions  as  to  the  travel  allowances  of  paymasters'  clerks,  see 
"Mileage,"  paragraph  634,  post.  The  act  of  February  27,  1893  (27  Stat.  L.,  176),  pro- 
vides that  "the  number  of  paymasters'  clerks  shall  be  reduced  one  for  every  pay- 
master reduced  under  the  operation  of  this  act." 

3For  general  provisions  respecting  bonds  of  disbursing  officers,  see  the  chapters  v 

entitled  THE  TREASURY  DEPARTMENT  and  THE  STAFF  DEPARTMENTS. 

4  PAYMENT  OF  ENLISTED  MEN. 

Troops  will  be  paid  every  month  unless  circumstances  prevent,  in  which  case  the 


216 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


PAT    AND  ALLOWANCES. 


Par. 

608.  Rates  of  pay  to  officers. 

609.  Pay  of  principal  assistant  in 

Ordnance  Bureau. 


Par. 

610.  Mounted  pay. 

611.  To  Le  paid  monthly. 

612.  Brevets. 


paymaster  charged  with  the  payment  will  immediately  report  the  facts  through  his 
chief  paymaster  to  the  Pay  master- General.     (Par.  1348,  A.  R.,  1895.) 
Payments  will  he  made  as  soon  after  the  close  of  each  mouth  as  practicable: 

( 1 )  By  paymasters  in  person ;  or 

(2)  By  check  or  currency  shipped  by  express. 

The  troops  at  posts  where  paymasters  are  stationed  and  others  in  their  immediate 
vicinity,  to  be  designated  in  instructions  issued  from  the  Adjutant  General's  Office, 
will  be  paid  by  paymasters  in  person. 

For  posts  at  which  payments  are  not  required  to  be  made  in  person,  the  paymaster 
will  transmit  the  pay  due  in  one  or  more  of  the  following  ways: 

(1)  By  individual  check,  payable  to  the  order  of  each  manfor  the  exact  amountdue. 

(2)  By  inclosing  in  a  separate  sealed  envelope  the  exact  amount  in  currency  due 
each  soldier,  with  his  name  and  the  amount  inclosed  marked  thereon.     (Par.  1349, 
ibid.) 

Duplicate  muster  and  pay  rolls  will  be  duly  signed  by  the  men,  and  forwarded  by 
the  commanding  officer  by  mail  to  the  paymaster  who  has  been  designated  by  the 
department  commander  to  pay  the  command.  (Par.  1350.  ibid.) 

When  forwarding  the  rolls  the  post  commander  will  furnish  the  paymaster  with 
the  name,  rank,  etc.,  of  the  officer  designated  to  see  that  the  men  of  the  command 
are  paid,  and  at  the  same  time  will  state  what  part  of  the  pay  can  conveniently  be 
received  by  the  men  in  individual  checks  and  cashed  at  or  near  the  post  without 
discount,  designating  the  location  of  depository  on  which  it  is  desired  that  the 
checks  should  be  drawn.  The  remainder  of  the  pay  will  be  sent  in  envelopes. 
(Par.  1351,  ibid.) 

The  paymaster  will,  as  far  as  practicable,  draw  the  checks  on  the  depository  desig- 
nated, the  checks  and  money  for  each  organization  will  be  inclosed  in  separate  pack- 
ages properly  marked,  and  the  whole  will  be  consolidated  into  one  package  and 
forwarded  by  express  to  the  post  commander.  One  of  each  ot  the  company  or 
detachment  rolls  extended  to  show  the  amounts  to  be  paid  will  be  returned  to  the 
commanding  officer  and  by  him  sent  to  the  proper  company  commanders.  (Par. 
1352,  ibid.) 

At  places  beyond  express  delivery,  the  post  commander,  when  notified  by  the 
paymaster  that  funds  are  to  be  expected,  will  send  an  officer  with  a  suitable  escort 
to  receipt  for  the  express  package  and  convey  the  funds  to  the  post.  The  name  of 
the  officer  authorized  to  receipt  for  the  package  will  previously  have  been  reported 
to  the  paymaster.  (Par.  1353,  ibid.) 

When  the  package  is  received  at  the  post,  it  will  be  delivered  to  the  officer  who 
has  been  designated  by  the  commanding  officer  to  distribute  the  pay.  As  soon  as 
possible  the  individual  checks  or  the  currency  will  be  handed  to  the  men  by  the 
officer  designated,  and  when  the  payment  is  in  currency  from  envelopes,  a  second 
officer,  who  may  be  the  company  commander,  will  be  required  to  verify  the  amounts 
in  the  envelopes,  so  that,  in  case  of  error,  certificates  may  be  prepared  at  once  by 
both  officers.  Should  there  be  a  deficiency,  it  will  be  so  certified  on  the  roll  by  the 
paying  and  the  verifying  officers,  and  should  there  be  an  excess  the  surplus  will  be 
returned  to  the  paymaster.  In  each  case  a  statement  of  the  facts,  with  appropriate 
certificates,  will  be  sent  to  the  paymaster  by  the  post  commander.  ( Pai .  1354,  ibid.) 

Should  any  error  or  informality  be  discovered  in  a  check,  it  will  be  returned  to  the 
paymaster  for  correction ;  and  the  roll  may  be  held,  or  returned  with  a  note  as  to  the 
nonpayment,  at  the  discretion  of  the  post  commander.  (Par.  1355,  ibid.) 

Should  the  bank  or  person  who  cashes  the  individual  check  so  desire,  the  company 
commander  will  certify  to  the  correctness  of  the  indorsements  made  by  his  men  upon 
their  respective  checks.  (Pat.  1356,  ibid.) 

Each  company  commander  will  witness  the  payment  of  the  company  and  so  certify 
on  the  roll,  which  he  will  then  transmit  to  the  paymaster.  When  the  paymaster  has 
received  this  witnessed  roll  he  will  send  the  duplicate  to  be  witnessed  and  returned. 
Should  it  be  impracticaDle,  owing  to  his  absence  or  incapacity,  to  secure  the  signa- 
ture of  the  witnessing  officer  to  the  second  roll,  any  commissioned  officer  may  make 
upon  it  an  official  copy  of  the  witnessing  officer's  certificate  and  signature  as  evi- 
denced by  the  retained  roll.  (Par.  1357,  ibid.) 

Should  a  soldier  die  or  desert  in  the  interval  between  signing  the  roll  and  the 
actual  payment,  the  check  or  the  cash  received  for  him  will  be  treated  as  the  effects 
of  a  deceased  soldier  or  of  a  deserter.  Should  he  be  temporarily  absent  or  in  con- 
finement, it  will  be  retained  by  the  company  commander  until  return  or  release  of 
the  soldier.  (Par.  1358,  ibid.) 

Should  a  soldier  decline  to  receive  his  pay,  or  if.  for  any  other  reason  than  those 
mentioned,  it  should  be  impracticable  to  deliver  it  to  him,  the  money  or  check  will  be 
returned  by  express  or  registered  mail  to  the  paymaster,  the  man's  signature  on  the 
roll  canceled,  and  a  note  of  explanation  verified'  by  the  signature  of  the  witnessing 
officer  made  upon  the  roll.  (Par.  1359,  ibid.) 

Deposits  may  be  made  in  the  usual  manner,  the  amount  to  be  deposited  being 
reported  to  the  paymaster  by  letter  forwarded  with  the  rolls,  the  soldier's  deposit 
book  being  also  forwarded  therewith.  Should  a  man  desire  to  deposit  a  sum  greater 
than  his  pay,  his  company  commander  will  see  that  a  proper  check,  postal  order,  or 
express  order  accompanies  his  deposit  book;  if  neither  check  nor  order  can  be 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES. 


217 


Par. 

613.  Allowances. 

614.  Service  pay. 

615.  Not  to  exceed  40  per  centum 

of  yearly  pay. 

616.  Maximum   of   colonel's    and 

lieutenant-colonel's  pay. 

617.  Service    for    longevity   pay, 

how  computed. 


Par. 

618.  To  be   computed    on  yearly 

pay  of  grade. 

619.  Pay  of  retired  officers. 

620.  Pay  of  officers  whoily  retired. 

621.  Pay  during  absence. 

622.  Leaves  of  absence  on  full  pay. 

623.  Forfeiture  of  pay  during  ab- 

sence without  leave. 


OFFICERS. 


p.  320;    July   24, 
1876,  c.  220,  v.  19, 
p.  97. 
Sec.  1261,  R.S. 


608.  The  officers  of  the  Army  shall  be  entitled  to  the    Kates  of  pay 

to  officers. 

pay1  herein  stated  after  their  respective  designations:  Mar. 2, 1867, c. 

The  General :  thirteen  thousand  five  hundred  dollars  a  423';  jui/is.is'To,' 

c.  294,  s.  24,  v.  16, 

year. 

Lieutenant-General :  eleven  thousand  dollars  a  year. 

Major-general:  seven  thousand  five  hundred  dollars  a 
year. 

Brigadier-general :  five  thousand  five  hundred  dollars  a 
year. 

Colonel :  three  thousand  five  hundred  dollars  a  year. 

Lieutenant  -colonel:  three  thousand  dollars  a  year. 

Major:  Two  thousand  five  hundred  dollars  a  year. 

Captain,  mounted:  two  thousand  dollars  a  year. 

Captain,  not  mounted:  eighteen  hundred  dollars  a  year. 

Adjutant:  eighteen  hundred  dollars  a  year. 

Kegimental  quartermaster:  eighteen  hundred  dollars  a 
year. 

First  lieutenant,  mounted:  sixteen  hundred  dollars  a 
year. 

First  lieutenant,  not  mounted :  fifteen  hundred  dollars  a 
year. 

Second  lieutenant,  mounted:  fifteen  hundred  dollars  a 
year. 

Second  lieutenant,  not  mounted :  fourteen  hundred  dol- 
lars a  year. 

Chaplain :  fifteen  hundred  dollars  a  year.2 


obtained,  the  company  commander  will  send  the  money  by  registered  mail  at  public 
expense,  verifying  the  amount  and  reporting  it  in  a  separate  communication  to  the 
paymaster.  Deposit  books  will  be  returned  oy  the  paymaster  to  the  company  com- 
mander properly  filled  in  for  attestation.  (Par.  1360,  ibid.) 

Troops  in  the  field  will  bo  paid  by  currency  in  envelopes,  unless  the  department 
commander  directs  personal  payment  by  the  paymaster.  (Par.  1361,  ibid.) 

In  time  of  war,  troops  in  active  campaign  will  be  paid  by  paymasters  in  person; 
troops  in  garrison  may  be  paid  by  the  paymaster  or  by  checks  or  currency  in  envel- 
opes; troops  in  campaign  by  either  of  these  methods,  as  the  army  or  department 
commander  may  direct.  "  (Par.  1362,  ibid.  See,  also,  G.  0.,  31,  A.  G.  O.,  1896  ) 

'Pay  is  the  monthly  pecuniary  compensation  of  officers  and  soldiers  of  the  Army, 
as  fixed  by  sections  1261,  1280,  etc..  Revised  Statutes.  It  is  quite  distinct  from 
"allowances."  Dig.J.  A.  G.,  560,  par.  1;  10  Opin.  Att.  Gen. ,285.  The  right  to  pay 
begins  and  ends  with  the  period  of  legal  service.  Except  by  special  authority  of 
Congress,  an  officer  or  soldier  can  not  be  paid  for  military  service  rendered  before 
appointment,  enlistment,  or  muster  in.  See  note  1  to  paragraph  614,  post.  See  also 
the  chapter  entitled  COMMISSIONED  OFFICERS. 

2See,  for  rank  and  retired  pay  of  these  officers,  paragraph  931,  post. 


218  THE   MILITAEY   LAWS   OF   THE   UNITED   STATES. 

Aid  to  major-  general:   two  hundred  dollars  a  year,  in 
addition  to  pay  of  his  rank. 

Aid  to  brigadier-general  :  one  hundred  and  fifty  dollars 
a  year,  in  addition  to  pay  of  his  rank. 

Acting   assistant  commissary:    one  hundred  dollars  a 
year,  in  addition  to  pay  of  his  rank. 

Ordnance  store-keeper  at  Springfield  armory  r1  two  thou- 
sand five  hundred  dollars  a  year. 

All  other  store-keepers  :  two  thousand  dollars  a  year. 
prf^istSnt^in     609'  Tue  PrinciPal   assistant  in  the  Ordnance  Bureau 
ordnance  BU-  shall  receive  compensation,  including  pay  and  emoluments, 
r  Feb  27  187?  v  no^  exceeding  that  of  a  major  of  ordnance. 

]9,  p.  243.      Se<%  1279,  R.  S. 

^nat  officers  of  the  Army  and  of  Volunteers  assigned 


GQ,  v.  19,  p.  243.  '  'to  duty  which  requires  them  to  be  mounted  shall,  during 

Sec.  IL  <  0«  lv.  S.  _  11  • 

the  time  they  are  employed  on  such  duty  receive  the  pay, 
emoluments,  and  allowances  of  cavalry  officers  of  the  same 
grade  respectively.2 

m^nthibe  paid     ^ll.  ^ne  sums  hereinbefore  allowed   shall  be  paid  in 

294  Us  24*  V8ie'  c'  monthty  payments  by  the  paymaster.3 

320!     Sec.  126?,'  R.  S. 

Brevets.  Qi2.  Brevets  conferred  upon  commissioned  officers  shall 

82,  v.  12.'  p.  758;  not  entitle  them  to  any  increase  of  pay. 

AI  <ir.  3,  186o,  c.  79, 

s.  9,  v.  13,  p.  488.  — 

Sec*  1264,  R.  S.      'And  the  ordnance  storekeeper  on  duty  as  disbursing  officer  and  assistant  to  the 
chief  of  ordnance.    See  paragraph  856.  note,  and  paragraph  863,  post. 

8  A  mounted  officer  is  one  who,  by  statute,  regulations,  or  army  organization,  is 
"required"  to  be  mounted  at  his  own  expense.  Harold  v.  U.  S.,23  (J.  Cls.  R.,  295. 
An  officer  of  a  battery  designated  by  the  President  as  a  "light  battery"  is  entitled 
to  mounted  pay  from  the  date  of  such  designation.  Ibid.  Officers  are  not  assigned 
to  duty  "requiring  them  to  be  mounted"  when  no  order  or  authorization  requiring 
them  to  mount  themselves  has  been  issued  by  the  War  Department,  and  they  have 
merely  been  riding  Government  horses,  by  permission,  and  have  been  furnished  with 
Gpvernmentequipments.  Forbes  v.  U.  S.,  17  C.  Cls.  R.,  32.  Nor  are  officers  so  assigned 
within  the  meaning  of  the  act  of  February  12,  1877,  where  they  are  simply  mounted 
on  Government  horses  captured  from  Indians,  and  do  not  furnish,  at  their  own 
expense,  horses,  saddles,  bridles,  sabers,  pistols,  spurs,  and  other  cavalry  equipments. 
Ibid.  ;  Carter  v.  U.  S.,  22  ibid.,  73. 

The  following  officers,  in  addition  to  those  whose  pay  is  fixed  by  law,  are  entitled 
to  pay  as  mounted  officers:  Officers  of  the  staff  corps  below  the  rank  of  major,  offi- 


requires  them  to  be  mounted  and  so  certified  by  the  latter  on  their  pay  vouchers. 
Acting  judge-advocates  of  military  departments,  duly  detailed,  are  entitled,  while 
BO  serving,  to  the  rank,  pay,  and  allowances  of  captains  of  cavalry.  (Par.  1301. 
A  R.,  1895.) 

Department  commanders  will  announce,  in  ordersy  the  authority  obtained  from  the 
Secretary  of  War  for  mounting  companies  of  infantry,  giving  the  date  from  which 
such  mounted  service  commences,  and  termination  of  the  Hame.  (Par.  1302,  ibid.) 

Muster  rolls  and  returns  of  light  batteries  and  companies  of  mounted  infantry 
will  show  the  number,  date,  and  sourceof  order  authorizing  mounted  service.  The 
pay  accounts  of  officers  charging  mounted  pay  will  contain  the  same  information. 
A  copy  of  the  order  will  be  attached  to  the  first  muster  rolls  prepared  after  the  bat- 
tery or  company  has  been  equipped  or  mounted;  a  copy  of  the  order  discontinuing 
such  service  will  appear  oa  the  first  muster  rolls  prepared  after  its  discontinuance. 
(Par.  1303,  ibid.) 

PAYMENTS  TO  OFFICERS. 

8  Officers  willbe  paid  monthly,  on  duplicate  accounts,  certified  by  themselves,  accord- 
ing to  prescribed  forms.  (Par.  1298.  A.  R.,  1895.) 

Section  1268,  Revised  Statutes,  requires  that  officers  shall  be  paid  monthly,  and 
section  3848,  Revised  Statutes,  in  effect,  forbids  their  being  paid  in  advance.  Their 
right,  however,  to  assign  their  monthly  pay,  when  duly  accrued,  has  long  been 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  219 

618.  No  allowances  shall  be  made  to  officers  in  addition    Allowances, 

'      July  15, 1870,  c. 

to  their  pay  except  as  hereinafter  provided.1  294, 8. 24,  v.  ie,  P. 

LONGEVITY   PAY. 

614.  There  shall  be  allowed  and  paid  to  each  commis- 
sioned  officer  below  the  rank  of  brigadier- general,  includ-  320! 8'    '  v'    >p' 

Sec  ITsJ  R  S 

ing  chaplains  and  others  having  assimilated  rank  or  pay, 
ten  per  centum  of  their  current  yearly  pay  for  each  term  of 
five  years  of  service.2 

admitted.  15  Opin.  Att.  Gen.,  611.  The  prohibition  in  paragraph  1300  of  the  transfer 
of  pay  accounts  before  they  are  due  implies  the  right  to  transfer  them  when  or  after 
due.  Dig.  J.  A.  G.,  570,  par.  28;  15  Opin.  Att.  Gen.,  271.  The  pay  of  an  officer 
authorized  to  receive  it  can  be  paid  by  a  paymaster  only  to  the  officer  himself 'or 
his  proper  assignee.  Where  two  or  more  persons  produce  assignments  of  an  officer's 
pay,  or  of  a  portion  or  portions  of  the  same,  the  paymaster  should  refuse  to  pay  at 
all.  The  Government  can  not  undertake  to  decide  such  controversies.  Dig.  J.  A.  G., 
570,  par.  29. 

An  officer  will  not  hypothecate  nor  transfer  a  pay  account  not  actually  due. 
a  When  due  it  may  be  transferred  by  indorsement,  naming  the  party  to  whom  trans- 
ferred, and  may  be  paid  by  the  proper  paymaster  if  satisfied  of  the  genuineness  of 
the  officer's  signature  and  if  no  stoppage  or  other  disability  as  to  pay  prevents.  The 
date .  of  transfer,  certified  by  the  officer  whose  account  it  is,  w'i  11  appear  in  the 
indorsement.  When  an  officer  transfers  a  pay  account,  he  will,  at  the  time  of  transfer, 
communicate  the  fact  to  the  chief  paymaster  of  the  department,  through  the  pay- 
master who  is  expected  to  pay  it.  If  the  officer  be  on  leave,  or  if  his  accounts  be 
payable  in  Washington,  the  notification  of  transfer  will  be  made  to  the  Paymaster 
General.  (Par.  1300,  ibid.) 

The  assignment  of  their  pay  accounts  by  army  officers  after  the. same  become 
due  is  authorized  by  paragraph  1300  of  the  Army  Regulations  of  1895,  and  is  legal. 
(3Compt.Dec.,45.) 

A  person  appointed  to  the  Army,  or  receiving  an  appointment  to  a  new  office 
therein,  is  entitled  to  pay  from  date  of  acceptance  only.  In  all  cases  of  promotion 
an  officer  is  entitled  to  pay  from  date  of  vacancy.  (Par.  1306,  A.  R.,  1895.) 

In  payment  to  officers  and  enlisted  men,  the  days  of  commencement  and  .expira- 
tion of  service  will  be  included.  When  service  begins  on  the  31st  day  of  a  month, 
pay  will  not  be  allowed  for  that  day.  (Par.  1312,  ibid.) 


An  acting  commissary  will  be  paid  the  additional  pay  allowed  by  law,  on  the  cer- 
tificate of  the  Commissary-General  that  he  has  performed  the  duty  contemplated 
therein  during  the  time  charged.  To  entitle  him  to  this  pay  he  must  be  detailed 


under  proper  orders  from  some  established,  post  or  body  of  troops,. and  must  issue 
full  rations  to  troops  from  stores  for  which 


he  is  responsible.     (Par.  1304,  ibid.) 

No  officer  shall  receive  pay  for  two  staff,  appointments  for  the  same  time.    This 
prohibition  does  not  prevent  a  quartermaster  of  a  regiment  who,  in  addition  to  the 
duties  of  his  office,  may  be  acting  commissary,  from  receiving  the  extra  compensat 
tion  allowed  by  law  for  performing  the  duties  of  the  latter.    (Par.  1305,  ibid.) 
An  officer  leaving  the  service  will,  before  receiving  final  payment,  produce  certifi- 


cates  as  to  his  indebtedness  to  the  United  States,  and  will  make  oath  upon  the  final 
voucher  to  the  correctness  of  the  several  items  contained  therein,  stating  the  place 
of  his  residence,  and  that  he  is  not  indebted  to  the  United  States  on  any  account 
whatever,  except  as  shown  by  said  certificate.  (Par.  1307,  ibid.) 

An  officer  who  tenders  his  resignation  while  on  duty  will  receive  pay  to  include 
the  date  on  which  he  receives  notice  of  acceptance,  if  he  continue  on  duty  until  that 
time;  or  if  sooner  relieved  from  duty,  to  include  the  date  of  relief.  An  officer 
whose  resignation  takes  effect  while  on  leave  will  be  paid  to  include  date  of  accept- 
ance. (Par.  1308,  ibid. ;  Burger  v.  U.  S.,  6  C.  Cls.  R.,  35.) 

An  officer  placed  upon  the  retired  list  will  receive  active  pay  to  include  the  date 
of  retirement.  If  on  duty,  he  will  receive  such  pay  to  include  the  date  of  relief 
from  duty.  (Par.  1309,  A.K.,  1895.) 

An  officer  dismissed  by  sentence  of  court-martial  will  be  paid  to  the  date  of  termi- 
nation, of  service,  as  specified  in  the  order  promulgating  the  sentence.  (Par.  1310, 
ibid.) 

An  officer  of  the  Army  appointed  to  a  grade  in  the  volunteers  or  militia  in  the 
service  of  the  United  States  superior  to  that  held  by  him  in  the  Army  will  be 
entitled  to  the  pay  and  emoluments  of  the  grade  to  which  appointed,  after  muster 
therein.  (Par.  1313,  ibid.) 

'Pay  is  the  fixed  and  direct  amount  given  by  law;  allowances  or  emoluments  are 
indirect  or  contingent  remuneration ;  both  are  compensation.  (Sherburne  v.  U.  S., 
16  C.  Cls.  R.,  491.)  See  also  note  1  to  paragraph  608,  ante. 

!Longevity  pay  is  founded  upon  the  equivalent  of  increased  judgment  and  capacity 
acquired  by  the  experience  of  continued  service.  Brown  v.  U.  S.,  18  C.  Gls.  R.,  545. 
Acts  authorizing  longevity  pay  are  remedial  statutes,  and  officers  are  entitled  to  a 
liberal  interpretation  of  them,  the  language  used  being  given  as  broad  a  meaning  as 
Congress'may  be  presumed  to  have  intended.  Hendee  v.  U.  S.,  22  C.  Cls.  R.,  134;  19 
ibid.,  153. 

An  officer  once  in  actual  service,  under  color  of  office,  is  entitled  to  have  the  time 


220  THE    MILITARY   LAWS    OF    THE    UNITED   STATES. 


Not  to  exceed     615.  The  total  amount  of  such  increase  for  length  of 

40  per  centum  ol 

yearly  pay.        service  shall  in  no  case  exceed  forty  per  centum  on  the 

July  15,  1870,  c, 

294,  s.  24,  v.  16,  p.  yearly  pay  of  the  grade  as  provided  by  law. 
Maximum  V      616.  In  no  case  shall  the  pay  of  a  colonel  exceed  four 

colonel's  and 

lieutenant  -coi-  thousand  five  hundred  dollars  a  year,  or  the  pay  ot  a  lieu- 
°™n\yi5-i87o  c  tenant-colonel  exceed  four  thousand  dollars  a  year. 

294,  s.  24,  V.  16,'p!  320.    Sec.  1267,  R.  S. 

longevity  pfy*       617t    Tnat  OU  and  afteF  tlie  PaSSage  °f  tnis  act7  a11  officers 

bow  computed.  of  the  Army  of  the  United  States  who  have  served  as 

Sec.  7,  June  18,  J 

1878,  v.  20,  p.  150.  officers  in  the  volunteer  forces  during  the  war  of  the  rebel- 
lion, or  as  enlisted  men  in  the  armies  of  the  United  States, 
regular  or  volunteer,  shall  be,  and  are  hereby,  credited  with 
the  full  time  they  may  have  served  as  such  officers  and  as 
such  enlisted  men  in  computing  their  service  for  longevity 
pay  and  retirement.1  Sec.  7,  act  of  June  18,  1878  (20  Stat. 
L.,  150). 
TO  becomput-  618.  That  from  and  after  the  first  day  of  July,  eighteen 

ed  on  yearly  pay 

of  grade.          hundred  and  eighty-two,  the  ten  per  centum  of  increase 

June  30,  1882,  .       ,  ,.  ,   A 

v.  22,  p.  118.  lorlengthoi  service  allowed  to  certain  officers  by  section 
1262  of  the  Revised  Statutes  [par.  614,  ante]  shall  be  com- 
puted on  the  yearly  pay  of  the  grade  fixed  by  sections 
1261  [par.  608,  ante]  and  1274  [par.  619,  post]  of  the  Eevised 
Statutes.  Act  of  June  30,  1882  (22  Stat.  L.,  118). 

RETIRED   OFFICERS. 

Pay  of  retired     619.  Officers  retired  from  active   service  shall  receive 

omcers. 

July  is,  1870,  c.  seventy-five  per  centum  of  the  pay  of  the  rank  upon  which 

294,  s.  24,  v.  16,  p. 

320;  Mar.  3,1875,  they  are  retired.2 

C.178,v.l8,p.512;          * 

Koberts'a    Case,  10  C.  Cls.  R.,  283.    Sec.  1274,  B.  S. 

credited  to  him  in  the  computation  of  longevity  pay.  Gould  v.  U.  S.,  19  C.  Cls.  R., 
593.  The  time  of  actual  service  is  to  be  credited  to  an  officer  in  the  computation  of 
his  longevity  pay,  without  regard  to  a  defect  in  his  title  to  the  office.  Palen  v. 
U.  S.,  19  ibid.,  389.  Service  as  chaplain  prior  to  the  act  of  March  2.  1867  (14  Stat.  L., 
423),  can  be  reckoned  in  computing  longevity  pav,  chaplains  being  in  the  military 
service  prior  to  that  date.  U.  S.  v.  LaTourette,  151  U.  S.,  572.  Service  as  a  contract 
surgeon  can  not  be  reckoned  in  such  computation.  Byrnes  v.  U.  S.,  26  C.  Cls.  R., 
302;  Hendee  v.  U.  S.,  124  U.  S.,  309.  Before  the  passing  of  the  act  of  July  28,  1866, 
as  well  as  afterwards,  the  corps  of  cadets  of  the  Military  Academy  was  a  part  of  the 
Army  of  the  United  States,  and  a  person  serving  as  a  cadet  was  serving  in  the 
Army  ;  and  the  time  during  which  a  person  has  served  as  a  cadet  was,  therefore, 
actual  time  of  service  by  him  in  thelineof  the  Army.  Morton  v.  U.  S.,  112  U.S.,  1,7. 
In  computing  longevity  pay,  service  performed  as  cadets  at  the  Military  or  Naval 
Academy,  or  as  enlisted  men  of  the  Army  or  Navy,  will  be  counted.  (Par.  1311, 

1  See  note  2  on  page  219. 

2  Re  tired  officers  being  in  the  military  service  of  tht,  Government,  the  increased 
pay  of  10  per  cent  for  each  five  years'  service  applies  to  the  years  so  passed  in  the 
service,  after  retirement  as  well  as  before.    U.  S.  v.  Tyler,  105'  U.  S.,  244,  246,  and  16  C. 
Cls.  R.,  223. 

An  officer  placed  upon  the  retired  list  will  receive  active  pay  to  include  the  date 
of  retirement.  It  on  duty,  he  will  receive  such  pay  to  include  the  date  of  relief 
from  duty.  (Par.  1309,  A.  R.,  1895.) 

For  provisions  respecting  the  retirement  of  officers  and  their  status,  see  the  title 
Retirement  of  Omcers     in  the  chapter  entitled  COMMISSIONED  OFFICERS.    See  also 

23;  17ibid"437'  and105 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  221 


OFFICERS  WHOLLY  RETIRED. 

620.  Officers  wholly  retired  from  the  service  shall  be  J 
entitled  to  receive,  upon  their  retirement,  one  year's  pay42A8ug17fv!8i621,'p! 
and  allowances  of  the  highest  rank  held  by  them,  whether  29£;c>1275  BiS> 
by  staff  or  regimental  commission,  at  the  time  of  their 
retirement. 

PAY  DURING  ABSENCE. 

621.  Officers  when  absent  on    account  of  sickness   or    Pay  during  ab- 
wouuds,  or  lawfully  absent  from  duty  and  waiting  orders,    Aug.  3,  isei,  c. 
shall  receive  full  pay;  when  absent  with  leave,  for  other 296 f'Ma/Mseai 
causes,  full  pay  during  such  absence  not  exceeding  in  the  p.  vie?'  jtine  20) 
aggregate  thirty  days  in  one  year,  and  half-pay  during  ^^ 
such  absence  exceeding  thirty  days  in  one  year.    When  ^  ^ib^ 
absent  without  leave,  they  shall  forfeit  all  pay  during  such  %%* V8\™™' £- 
absence,  unless  the  absence  is  excused  as  unavoidable.1       jSJV'io1?8!^ 

U.  S.  v.  Williamson,  23  Wall.,  411.    Sec.  1265?R.  S.' 

622.  All  officers  on  duty  shall  be  allowed,  in  the  discre-    leaves  of  ab- 

*  '  senceon  full  pay. 

tion  of  the  Secretary  of  War,  sixty  days'  leave  of  absence  vjulv  29'  1876« 

without  deduction  of  pay  or  allowance :  Provided,  That  the 

same  be  taken  once  in  two  years :  And  provided  further, 

That  the  leave  of  absence  may  be  extended  to  three  months, 

if  taken  once  only  in  three  years,  or  four  months  if  taken 

only  once  in  four  years.2    Act  of  July  29,  1876  (19  Stat.  L., 

102). 

1  Section  1265  of  the  Revised  Statutes  was  replaced  by  the  act  of  May  8,  1874  (18 
Stat.  L.,  43),  which  provided  that  "all  officers  on  duty  west  of  a  line  drawn  north  and 
south  through  Omaha  City  and  north  of  a  line  drawn  east  and  west  upon  the 
southern  boundary  of  Arizona  shall  be  allowed  sixty  days'  leave  of  absence  without 
deduction  of  pay  or  allowances :  Provided,  That  the  leave  is  taken  but  once  in  two 
years:  And  provided  further,  That  the  leave  may  be  extended  to  three  months  if 
taken  only  once  in  three  years,  or  four  months  if  taken  once  only  in  four  years." 
This  statute  was  superseded  by  the  act  of  July  29,  1876,  above  cited.  See  paragraph 
622,  post.  For  statutory  provisions  respecting  leaves  of  absence  to  graduates  of 
the  Military  Academy,  see  paragraph  622,  post  (note),  and  the  chapter  entitled  THE 
MILITARY  ACADEMY. 

2  LEAVES  OF  ABSENCE  TO  OFFICERS. 

In  time  of  peace  the  commander  of  a  post  may  grant  leaves  of  absence  not  to 
exceed  seven  days  at  one  time,  or  in  the  same  month ;  and  he  may  give  permission 
to  apply  to  the  proper  authority  for  extension  of  such  leaves  for  a  period  not  to 
exceed  twenty-three  days.  (Par.  44,  A.  R.,  1895.) 

The  commander  of  a  post  may  take  leave  of  absence  not  to  exceed  seven  days  at 
one  time,  or  in  the  same  month,  reporting  the  fact  to  his  next  superior  commander. 
(Par.  45,  ibid.) 

A  department  commander  may  grant  leaves  for  one  month  and  the  Commanding 
General  of  the  Army  for  two  months ;  or  they  may  extend  to  such  periods  those 
granted  by  subordinate  commanders.  Applications  for  leaves  of  more  than  two 
months'  duration, or  from  officers  of  the  staff  corps  and  departments  for  more  than 
one  month,  or  from  department  commanders  desiring  leaves  of  absence  to  pass 
beyond  the  territorial  limits  of  their  commands,  will  be  forwarded  to  the  Adjutant- 
General  of  the  Army  for  the  action  of  the  Secretary  of  War.  (Par.  46,  ibid.) 

Chiefs  of  bureaus  may  grant  leaves  for  one  month  to  officers  of  their  respective 
corps  serving  underthe'ir  immediate  direction,  or  extend  to  that  period  those  already 
granted  to  such  officers.  (Par.  48,  ibid.) 

Leaves  of  absence  for  three  months,  from  date  of  graduation,  wilt  be  allowed  to 
graduates  of  the  Military  Academy.  They  will  not  be  counted  against  them  in 


222      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

ABSENCE  WITHOUT  LEAVE. 

Forfeiture  of  623.  Every  officer  who  is  dropped  by  the  President  from 
8encenwfthoutthe  rolls  of  the  Army,  for  absence  from  duty  three  months 
^uTy  is,  1870,  c.  without  leave,  shall  forfeit  all  pay  due  or  to  become  due.1 

294, 8. 17,  v.  16,  p.  

319 

Sec.  1266.  B.  S.  subsequent  applications  for  leaves,  but  can  not  be  postponed  to  another  time.    (Par. 
49,  ibid.) 

Leaves  of  absence  will  be  granted  in  terras  of  months  and  days,  as  "onemonth," 
41  one  month  and  ten  days."  Leave  for  one  month,  beginning  on  the  first  day  of  a 
calendar  month,  will  expire  with  the  last  day  of  the  month,  whatever  its  number  of 
days.  Commencing  on  an  intermediate  day,  the  day  will  expire  the  day  preceding 
the  same  day  of  the  next  month.  The  day  of  departure,  whatever  the  hour,  is 
counfted  a£  a 'day  of  duty ;  the  day  of  return,  as  a  day  of  absence.  (Par.  53,  ibid.) 

A  leave  of  absence  commences  on  the  day  following  that  on  which  the  officer  departs 
from  his  proper  station.  The  expiration  of  his  leave  must  find  him  at  his  post,  ex- 
cept as  indicated  in  paragraph  1331.  A  leave  of  absence  granted  an  officer  in  the  field, 
or  on  special  duty,  will  take  effect  on  the  termination  of  the  campaign,  or  on  the 
completion  of  such  duty,  unless  in  the  opinion  of  the  department  commander  his 
services  can  sooner  be  spared,  in  which  case  it  will  take  effect  at  such 'time  as  the 
department  commander  may  direct.  In  all  other  cases  an  officer  is  expected  to  avail 
himself  of  a  leave  as  soon  as  proper  facilities  offer,  unless  a  specific  date  is  stated  in 
the  order,  and  if  unable  to  do  so,  he  will  report  the  fact  to  the  authority  granting 
the  leave.  (Par.  54,  ibid.) 

PAY  DURING  ABSENCE   IN  CONFINEMENT. 

Officers  and  enlisted  men  in  arrest  and  confinement  by  the  civil  authorities  will 
receive  no  pay  for  the  time  of  such  absence ;  if  released  without  trial,  or  after  trial 
and  acquittal,  their  right  to  pay  for  the  time  of  such  absence  is  restored.  (Par.  1314, 
A.R.,  1895.) 

SICK  LEAVES. 

Application  for  leave  of  absence  on  account  of  sickness  will  be  made  to  the  com- 
manding officer,  who  will  refer  it  to  the  surgeon.  The  surgeon  will  examine  the 
applicant  and  should  he  find  the  leave  necessary  to  restore  health,  lie  will  submit  to 
the  commanding  officer  a  medical  certificate  in  the  prescribed  form,  stating  explicitly 
the  nature,  seat,  and  degree  of  the  disease,  wound,  or  disability,  the  cause  thereof 
if  known,  and  the  period  during  which  the  officer  has  suffered  from  it.  He  will  also 
give  his  opinion  as  to  whether  the  disease,  wound,  or  disability  can  be  satisfactorily 
treated  within  the  department  in  which  the  officer  is  stationed,  or  whether  a  change 
of  climate  or  locality  within  the  United  States  is  necessary  to  afford  more  rapid  or 
perfect  recovery,  in  which  case  the  special  place  or  region  recommended  will  be 
designated,  with  reasons  therefor.  The  surgeon  will  also  state  whether,  in  his  opin- 
ion, the  disease,  wound,  or  disability  requires  treatment  by  a  specialist,  and,  if  so, 
the  nearest  place  where  it  can  be  obtained ;  also  whether  the  wound  or  disease  inca- 
pacitates'the  officer  from  all  duty,  or  whether  he  can  perform  special  duty,  and,  if  so, 
the  kind  that  he  may  undertake  without  endangering  his  ultimate  cure.  (Par.  60, 

The  Commanding  General  of  the  Army  and  department  commanders  have  the 
same  authority  to  grant  leaves  of  absence  on  account  of  sickness  as  to  grant  ordi- 
nary leaves.  Permission  to  go  beyond  the  limits  of  the  command  in  which  the  appli- 
cant is  stationed' will  be  given  only  when  the  certificate  of  the  medical  officer  shall 
state  explicitly  that  it  is  necessary  to  afford  rapid  or  perfect  recovery.  (Par.  61,  ibid.) 

On  the  expiration  Of  a  sick  leave,  if  the  officer  be  able  to  travel,  he  will  proceed  to 
his  post  or  station.  If  an  extension  of  such  leave  be  necessary,  he  will  make  timely 
application  therefor  through  the  same  channel  as  in  case  of  request  for  extension  of 
ordinary  leave,  basing  his  application  upon  a  medical  certificate  in  prescribed  form. 
When  he  can  not  procure  the  certificate  of  a  medical  officer  he  will  substitute  his 
own  certificate,  on  honor,  as  to  his  condition,  which  will  embrace  a  full  statement  of 
his  case.  While  absent  from  duty  he  will  make 'report  in  the  same  manner  as  if  on 
ordinary  leave.  (Par.  62,  ibid.) 

An  ordinary  leave  will  not  be  changed  to  a  sick  leave,  unless  the  officer  desiring  it 
make  application  therefor  through  his  post  commander,  by  whom  it  will  be  referred 
to  the  surgeon,  who  will  certify  as  to  the  necessity  of  the  change,  or  otherwise,  as 
the  case  may  be.  The  post  commander  will  forward  the  application  through  inter- 
mediate commanders,  who  will  indorse  their  remarks  thereon  for  the  action  of  the 
Commanding  General  of  the  Army  or  the  Secretary  of  War.  In  all  reports  'concern- 
ing absence  on  account  of  sickness  the  officer  will  state  how  long  he  has  been  absent 
sick,  and  by  what  authority.  (Par.  64,  ibid.) 

Section  31  of  the  act  of  March  3,  1863  (12  Stat.  L.,  736),  does  not  apply  to  an  officer 

'The  pay  of  an  officer  absent  without  leave  is  not  absolutely  forfeited,  but  only 
when  it  has  been  made  to  appear  that  the  absence  was  not  unavoidable.  Smith  v, 

A  statement  by  the  Adjutant-General  that  an  officer  was  "absent  without  leave" 
is  conclusive  as  to  his  status,  and  is  not  affected  by  statements  made  by  officers  of 
the  War  Department  implying  the  belief  that  the  officer  was  not  responsible  for  his 
absence.  3  Compt.  Dec  ,  9. 

The  act  of  March  3.  1863  (sec.  1265,  Rev.  Stat.),  provides  that  an  officer  absent 
without  leave  shall  forfeit  all  pay,  etc.  If  payment  has  been  made,  it  may  be  recov- 
ered. Lapse  of  time  does  not  preclude  the  Government  from  charging  an  officer  with 
a  paymentmade  to  him  contrary  to  law.  Crowell  v.  U.  S.,  22  C.  Cla.  R.,  69. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


223 


COMMUTATION   OF   QUARTERS. 


Par.  Par. 

625.  Commutation  of  quarters.          629.  Military  attaches  entitled  to 

626.  Rates  of  commutation.  mileage  and  commutation 

627.  Rate     of     commutation    for  of  quarters. 

Lieutenant-General. 

628.  Right  to  commutation  not  for" 

feited    by    temporary    ab" 
sence  on  duty. 

625.  That  at  all  posts  and  stations  where  there  are  pub- 
lie  quarters  belonging  to  the  United  States,  officers  mayg 
be  furnished  with  quarters  in  kind  in  such  public  quarters, 
and  not  elsewhere,  by  the  Quartermaster's  Department, 
assigning  to  the  officers  of  each  grade,  respectively,  such 
number  of  rooms  as  is  now  allowed  to  such  grade  by  the 
rules  and  regulations  of  the  Army:  Provided,  That  at 
places  where  there  are  no  public  quarters,  commutation1 
therefor  may  be  paid  by  the  Pay  Department  to  the  officer 

ordered  to  proceed  to  his  home  and  there  await  orders,  though  the  order  was  issued  at 
his  own  request.  An  officer  "absent  with  leave  "  is  at  liberty  to  go  where  he  will ; 
an  officer  ordered  to  a  particular  place,  there  to  await  orders,  must  remain  in  that 
place  and  continue  as  much  under  orders  as  though  assigned  to  any  ordinary  military 
duty.  Williamson  v.  U.  S.,  10  C.  Cls.  R.,  50,  and  23  Wall.,  411 ;  Ptiisterer  v»  TJ.  S  11 
C.  Cls.  R.,  98,  and  94  U.  S.,219. 

An  officer  ordered  home  to  await  orders  may  change  hisplaco  of  residence,  reporting 
the  fact  to  the  War  Department.  Phisterer  v.  U.  S.,  12  C.  Cls.  R.,  98.  An  officer 
ordered  home  to  await  orders  can  not  make  his  home  ambulatory  by  simply  reporting 
from  the  places  where  he  may  chance  to  be.  Chilson  v.  U.  S.,  11  C.  Cls.  R.,  691. 

'Commutation  in  the  military  or  naval  service  is  money  paid  in  substitution  of 
something  to  which  an  officer,  sailor,  or  soldier  is  entitled;  being  regulated  by 
statutes  and  regulations,  it  can  not  be  allowed  by  inferior  authority.  Jaegle  t;.  TJ.  S'., 
28  C  Cls.  R.,  133.  The  right  of  an  officer  of  the  Army  to  commutation  of  fuel  and 
quarters  springs  out  of  the  general  authority  of  the  War  Department,  and  has 'been 
indirectly  sanctioned  by  Congress  from  the  origin  of  the  Government.  This  usage 
has  been  so  long  practiced  in  the  Army,  and  so  often  sustained  by  Congress  in 
appropriations  for  the  payment  of  such  commutations,  that  the  right  of  officers 
under  the  regulations  of  the  Army  can  not  now  be  questioned.  Whittlesey  v.  U.  S., 
5C.  Gls.  R.,  99.  Since  the  foregoing  decision  was  rendered  the  allowance  of  quarters 
for  the  several  grades  of  officers  or  the  Army  and  the  monthly  rate  of  commutation 
therefor  having  been  fixed  by  statute,  the  practice  can  no  longer  be  said  to  rest 
upon  usage  or  upon  the  authority  of 'regulations.  See  acts  of  June  18. 1878,  and 
June  23, 1879.  See,  also,  Dig.  Opin.  J.  A.  G.,  573,  par,  49. 

Officers  on  the  active  list  detailed  as  professors  of  colleges  and  engineer  officers 
engaged  upon  civil  works  are  entitled  to  commutation  of  quarters  and  to  purchase 
fuel  under  the  provisions  of  section  9  of  the  act  of  June  17,  1878.  Such  commuta- 
tion in  the  case  of  an  engineer  officer  would  not  be  payable  from  the  appropriation 
for  the  civil  work  upon  which  he  is  engaged.  Dig.  Opin.  J.  A.  G.,568,  pars.  22,23. 
See  also  Long  v.  TJ.  S.,  8  C.  Cls.  R.,  398.  An  officer  ordered  home  to  await  orders  is 
not  entitled  to  commutation  of  quarters,  such  home  not  being  a  military  station. 
Phisterer  v.  U.S.,  13  C.  Cls.  R.,  110.  When  a  military  officer  is  ordered  to  the  head- 
quarters of  a  military  department  to  await  further  orders  and  pursuant  to  the  order 
remains  there,  performing  no  duty,  he  is  entitled  to  commutation  of  quarters.  If 
such  headquarters  are  in  a  large  city  where  there  are  quarters  assignable  to  officers 
on  duty  it  is  not  necessary  for  nim  to  demand  that  quarters  be  assigned  him.  Lip- 
pitt  v.  U.  S.,  14  C.  Cls  R.,  148,  and  100  U.  S.,  663. 

Held  that  the  term  of  description  in  section  9  of  the  act  of  June  18,  1878,  "at  places 
where  there  are  no  public  quarters"  includes  places  where  the  public  quarters  were 
insufficient  for  all  the  officers  of  the  command;  and  that  officers  stationed  at  such 
places,  to  whom,  on  account  of  the  insufficiency  of  the  existing  accommodations,  no 
quarters  could  be -furnished  would  be  entitled  to  the  commutation  allowance.  Dig. 
Opin.  J.  A.  G.,  569,  par.  26. 

An  officer  who  has  quarters  in  kind  at  one  station  does  not  by  a  change-  of  station 
acquire  a  right  to  other  quarters  or  commutation  therefor  until  he  vacates  quarters 
at  the  former  station,  and  amounts  received  for  such  commutation  are  a  proper 
charge  against  him.  3  Dig.  Compt.  Dec.,  295. 

Temporary  absence  from  his  station  on  duty  which  requires  an  officer  of  the  Army 
to  travel  during  a  considerable  portion  of  the  time  does  not  amount  to  a  change  of 
station,  and  the  officer  does  not  lose  his  rights  or  acquire  other  rights  respecting 


224  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

entitled  to  the  same  at  a  rate  not  exceeding  ten  [twelve]1 
dollars  per  room  per  month,  and  the  commutation  for  quar- 
ters allowed  to  the  General  shall  be  at  the  rate  of  one 
hundred  and  twenty -five  dollars  per  month,  and  to  the 
Lieutenant- General  at  the  rate  of  seventy  [one  hundred]2 
dollars  per  month.  (Sec.  9,  act  of  June  17, 1878  (20  Stat.  L., 
151). 

Kates  of  com-     626.  For  commutation  of  officers7  quarters  at  places  where 

mju^eOI23, 1879,  there  are  no  public  quarters,  one  hundred  and  fifty-six 

v. 21, p. 81          thousand  dollars:  Provided,  That  no  allowance  shall  be 

made  for  claims  for  quarters  for  servants  heretofore  or 

hereafter ;  and  that  the  rate  of  commutation  shall  hereafter 

be  twelve  dollars  per  room  per  month  for  officers7  quarters, 

in  lieu  of  ten  dollars,  as  now  provided  by  law.    Act  of  June 

23,1879  (21  Stat.  L.,31). 

Bate  of  com-     627.  That  the  allowance  for  commutation  of  quarters  to 

mutation    for 

Lieutenant -Gen- the  Lieutenant-Gcneral  of  the  Army  shall  be  one  hundred 
June  28, 1882,  dollars  per  month ;  and  for  officers  and  enlisted  men  of  the 
Signal  Service  serving  in  the  Arctic  regions,  the  same  in 
amount  as  though  they  were  serving  in  Washington,  Dis- 
trict of  Columbia.     Act  of  June  28,  1882  (22  Stat.  L.,  118). 

quarters  by  such  absence.  If  there  are  available  quarters  at  his  station  he  is  not 
entitled  to  commutation.  Ibid,  295. 

Officers  temporarily  on  duty  in  the  field  shall  not  lose  their  right  to  quarters  or 
commutation  thereof  at  their  permanent  stations  while  so  temporarily  absent.  (Act 
of  July  16,  1892,  27  Stats.,  176.) 

For  allowance  for  rooms  in  kind,  see  note  1  to  paragraph  571  ante. 

COMMUTATION  OF  QUARTERS. 

An  officer  on  duty  without  troops  at  a  station  where  there  are  no  public  quarters, 
or  where  the  public  quarters  are  inadequate,  is  entitled  to  commutation  therefor  at 
established  rates.  (Par.  1336,  A.  E. ,  1895  ) 

An  officer  on  duty  at  a  station  where  he  is  properly  in  receipt  of  commutation  of 
quarters  is  entitled  to  the  allowance  during  ordinary  leave  on  full  pay,  but  not  dur- 
ing sick  leave.  If  be  is  relieved  from  duty  at  the  station  ana  then  granted  a  leave 
his  commutation  ceases.  (Par.  1337,  ibid.) 

An  officer  does  not  lose  his  right  to  quarters  or  commutation  at  his  permanent 
station  by  a  temporary  absence  on  duty.  While  he  continues  to  hold  that  right  and 
exercises  it  by  constructive  occupation  or  use  of  any  kind,  he  can  not  legally  demand 
quarters  nor  commutation  at  any  other  station.  Exceptions  to  this  rule  can  be  made 
only  by  the  Secretary  of  War.  (Par.  1338,  ibid.) 

When  the  command  to  which  an  officer  belongs  changes  station  during  his  tempo- 
rary absence  on  duty  he  loses  his  right  to  quarters  from  the  time  his  command  leaves 
its  old  station  and  does  not  acquire  a  right  at  the  new  station  until  he  has  reported 
for  duty  thereat.  He  is  entitled  in  the  meantime  to  quarters  or  commutation  there- 
for at  the  station  where  he  is  temporarily  serving.  (Par.  1339,  ibid.) 

An  officer  relieved  from  duty  at  one  station,  where  he  was  entitled  to  commutation 
of  quarters,  and  assigned  to  another,  is  not  entitled  to  such  allowance  from  the  date 
of  relief  to  the  date  on  which  he  reports  in  person  at  the  new  station.  (Par.  1340, 
ibid.) 

Officers  who,  for  the  convenience  of  the  Government,  are  directed  to  await  orders 
for  a  limited  period  at  a  point  where  there  are  no  public  quarters,  are  entitled  to 
commutation ;  but  an  officer  ordered  to  his  home  to  await  orders  is  not  entitled  to 
this  allowance.  An  officer  ordered  to  report  by  letter  to  a  superior  does  not  become 
entitled  to  commutation  of  quarters  until  he  receives  a  specific  order  of  assignment 
and  reports  in  person  at  the  station  to  which  assigned.  (Par.  1341,  ibid.) 

The  first  voucher  for  commutation  of  quarters  at  any  station  must  be  accompanied 
by  a  copy  of  the  order  assigning  the  officer  to  duty  thereat.  In  subsequent  vouchers 
the  paymaster  will  refer  by  number,  etc.,  to  the  voucher  with  which  the  order  is 
filed,  and  the  final  voucher  must  be  accompanied  by  the  authority  for,  and  must 
show  the  date  of  relief  from  such  duty.  (Par.  1342,  ibid.) 

•The  monthly  rate  of  commutation  was  fixed  at  $12  per  room  by  the  act  of  June 
23.  1879  (par.  626,  post). 

2  The  monthly  rate  of  commutation  in  the  case  of  the  Lieutenant-General  was  fixed 
at  $100  by  the  acts  of  February  24,  1881,  and  June  28,  1882.  (See  par.  627,  post.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


225 


628.  That  hereafter  officers  temporarily  absent  on  duty    Bight  to  com- 
in  the  field  shall  not  lose  their  right  to  quarters,  or  com-  felted  by  tempo- 

,.         ,,  ,,  ,,     .  ..  rary  absence  in 

mutation  thereof,  at  their  permanent  station  while  so  tern-  the  field. 
porarily  absent.     Act  of  February  27, 1893  (27  Stat.  L.,  478).  v.Sfp.  m.  1893) 

629,  Hereafter  the  officers  detailed  to  obtain  (military    Military  at- 
information  from  abroad)  shall  be  entitled  to  mileage  and mSeage andcon? 
transportation,  and  also  commutation  of  quarters  while  on  £?*"  tofquar" 
this  duty,  as  provided  when  on  other  duty.    Act  of  February  v.  27,^.  ITS.  1893> 
27,  1893  (27  Stat.  L.,  478}. 

TRAVEL   ALLOWANCES. 


MILEAGE. 


Par. 

634.  Travel    allowances    to    pay- 

master's clerks  and  to  ex- 
pert accountant. 

635.  Travel    pay    to    officers    on 

honorable  discharge. 


Par. 

630.  Mileage;  how  computed.    Ne- 

cessity   for    travel    to    be 
stated. 

631.  Travel  allowances. 

632.  Restriction    on   payment  of 

mileage.   Duty  to  be  stated. 

633.  Mileage  to  be  paid   by  Pay 

Department. 

630.  From  and  after  the  passage  of  this  act  mileage  of   Mileage;  how 

,„  ,.  computed.      Ne- 

omcers  01  the  Army  shall  be  computed  over  the  shortest  cessity  for  travel 

,,  ,     ,  to  be  stated. 

usually  traveled  routes  between  the4pomts  named  m  the    Mar.  3,  isss,  v. 
order,  and  the  necessity  for  such  travel  in  the  military  serv- 
ice shall  be  certified  to  by.  the  officer  issuing  the  order 
and  stated  in  said  order.    Act  of  March  3, 1883  (22  Stat.  L., 
456). 

631.  That  hereafter  the  maximum  sum  to  be  allowed  and    Travel  aiiow- 
paid  to  any  officer  of  the  Army  shall  be  four  cents  per  mile,  anlu8g.  c,  1394, 
distance  to  be  computed  over  the  shortest  usually  trav-i6?i896?v*52iflp! 
eled  routes,  and  in  addition  thereto  the  cost  of  the  trans- G3> 
portation  actually  paid  by  the  officer   over  said  route 

or  routes,  exclusive  of  parlor-car  or  sleeping-car  fare. 
And  provided  further,  That  when  any  officer  so  traveling 
shall  travel  in  whole  or  in  part  on  any  railroad  on  which 
the  troops  and  supplies  of  the  United  States  are  entitled 
to  be  transported  free  of  charge,  or  over  any  of  the  bond- 
aided  Pacific  railroads,  he  shall  bo  allowed  for  himself  only 
four  cents  per  mile  as  a  subsistence  fund  for  every  mile 
necessarily  traveled  over  any  such  railroads :  And  provided  Transportation 
further,  That  the  transportation  furnished  by  the  Quarter- 
master's  Department  to  officers  traveling  without  troops m( 
shall  be  limited  to  transportation  in  kind  not  including 
1919 15 


226  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

sleeping  or  parlor  car  accommodations,  over  free  roads,, 
over  bond-aided  Pacific  railroads,  and  by  conveyance  be- 
longing to  said  Department,  and  the  Secretary  of  War 
shall  so  apportion  this  sum  as  to  prevent  a  deficiency 
therein.  Act  of  August  6,  1894  (28  Stat.  L.,  236}. 
Restriction  on  632.  And  hereafter  no  portion  of  the  appropriation  for 

payment  of  mile- 
age.  Duty  to  be  mileage  to  officers  traveling  on  duty  without  troops  shall  be 

8  lug.  6,  1894,  expended  for  inspections  or  investigations,  except  such  as 
are  especially  ordered  by  the  Secretary  of  War,  or  such  as, 
are  made  by  Army  and  department  commanders  in  visiting 
their  commands,  and  those  made  by  Inspector-General's 
Department  in  pursuance  of  law,  army  regulations,  or 
orders  issued  by  the  Secretary  of  War  or  the  Commanding 
General  of  the  Army ;  and  all  orders  involving  the  payment 
of  mileage  shall  state  the  special  duty  enjoined.1  Act  of 
August  6,  1894  (28  Stat.  L.,  237). 

1  Section  1273,  Revised  Statutes,  fixed  the  allowance  of  mileage  at  10  cents  per 
mile,  to  be  computed  over  the  nearest  post-route  and  to  be  paid  by  the  Pay  Depart- 
ment. The  act  of  June  16,  1874  (18  Stat.  L.,  72),  discontinued  mileage  as  a  method  of 
reimbursement  for  expenses  incurred  in  traveling  on  duty  and  substituted  therefor 
the  payment  of  actual  expenses  in  all  cases  of  travel  under  orders.  This  provision 
was  repeated  in  the  act  of  March  3,  1875  (18  Stat.  L.,  452).  The  mileage  allowance 
was  restored  and  fixed  at  the  rate  of  8  cents  per  mile  by  the  act  of  July  24,  1876  (19 
Stat.  L.,  97),  but  was  not  payable  when  actual  transportation  had  been  furnished  by 
the  Quartermaster's  Department,  or  in  a  conveyance  owned  or  chartered  by  the 
United  States,  or  on  any  railroad  over  which  the  troops  and  supplies  of  the  United 
States  were  entitled  to  be  transported  free  of  charge ;  the  distance  in  each  case  was 
to  be  computed  by  the  shortest  usually  traveled  route.  Section  1273  was  repealed  by 
the  act  of  July  24,  187G,  above  cited.  The  act  of  March  3,  1883  (22  Stat.  L.,  456),  con- 
tained the  requirement  that  mileage  should  be  computed  over  the  shortest  usually 
traveled  routes  between  the  points  named  in  the  order,  and  that  the  necessity  for 
travel  should  be  certified  to.  in  each  case,  in  the  order  directing  the  journey. 
The  act  of  June  30,  1886  (24  Stat.  L.,  95),  fixed  the  rate  of  mileage  at  4  cents  per  mile, 
and,  in  addition  thereto,  the  cost  of  transportation  actually  paid,  exclusive  of  sleep- 
ing and  parlor  car  fares.  The  act  of  February  9,  1887  (24  Stat.  L.,  396),  contains  the 
following  provision:  "That  in  disbursing  this  amount  the  maximum  sum  to  be 
allowed  and  paid  to  an  officer  shall  be  four  cents  per  mile,  distance  to  be  computed 
over  the  shortest  usually  traveled  routes,  and,  in  addition  thereto,  upon  the  officer's 
certificate  that  it  was  not  practicable  to  obtain  transportation  from  the  Quarter- 
master's Department,  the  cost  of  the  transportation  actually  paid  by  the  officer  over 
said  route  or  routes,  exclusive  of  sleeping  or  parlor  car  fare  and  transfers :  And  pro- 
vided further,  That  when  any  officer  so  traveling  shall  travel  in  whole  or  in  part  on 
any  railroad  on  which  the  troops  and  supplies  ot  the  United  States  are  entitled  to  be 
transported  free  of  charge,  he  shall  be  allowed  for  himself  only  four  cents  per  mile 
as  a  subsistence  fund  for  every  mile  necessarily  traveled  over  any  such  last-named 
railroad.  All  the  money  hereinbefore  appropriated  except  the  appropriation  for 
mileage  to  officers  when  traveling  on  duty  without  troops  when  authorized  by  law, 
shall  be  disbursed  and  accounted  for  by  the  Pay  Department  as  pay  of  the  Army,  and 
for  that  purpose  shall  constitute  one  fund,"  which  was  repeated  in  the  acts  of  Sep- 
tember 22,  1888  (25  Stat.  L.,  483),  March  2,  1889  (25  Stat.  L.,  827),  June  13,  1890  (26 
Stat.  L.,  151),  February  24,  1891  (26  Stat.  L.,  773),  July  14,  1892  (27  Stat.  L,,  177), 
and  February  27,  1893.  The  act  of  February  12,  1895  (28  Stat.  L.,  057),  contains  the 
same  requirement. 

Mileage  is  a  form  of  reimbursement,  and  "  public  business  "  is  the  foundation  on 
which  it  rests.  Perrimond  v.  U.  S.,  19  C.  Cls.  R,,  509.  Allowances  for  travel  and 
subsistence  are  payable  to  officers  or  agents  of  the  United  States  only  when  they  are 
employed  at  other  places  than  their  residences.  Test  v.  U.  S.,  27  ibid,  352 ;  Barre  v. 
U.  S.,  ibid.,  357. 

The  mileage  allowance  to  an  officer  of  the  Army  on  the  active  list  is  fixed  by  law, 
the  law  in  effect  at  the  time  the  travel  is  performed  and  not  by  the  law  in  effect  when 
the  order  for  the  travel  is  issued.  1  Compt.  Dec.,  29, 

An  order  to  travel  to  a  designated  point,  perform  certain  duty,  and  return  is,  in 
effect,  two  distinct  orders,  ami  the  mileage  allowances  for  each  trip  is  fixed  by  the 
law  at  the  time  the  travel  in  each  case  was  commenced  Ibid. 

It  is  not  necessary  that  an  order  to  travel  should  specifically  designate  places  and 
routes.  It  may  leave  them  to  the  discretion  of  the  officer;  and  the  subsequent  ap- 
proval of  the  Department  will  be  conclusive  upon  the  accounting  officers.  Billings 
v.  U.  S..  23  C.  Cls.  R.,  166.  If  public  business  was  an  element  in  an  officer's  circuity 
of  route,  he  is  entitled  to  mileage  therefor;  if  it  was  not,  the  Government  is  not 
answerable  for  the  increased  distance.  Du  Bose  v.  U.  S.,  19  C.  Cls.  R.,  514. 

Where  the  route  is  left  to  the  discretion  of  the  officer  his  mileage  should  be  calcu- 
lated by  the  shortest  usually  traveled  route,  unless  some  good  reason  be  shown  for 
deviation.  Crosby  v.  U.  S.,  22  C.  Cls.  R.,  13.  (2  Compt.,  Dec.  544.) 

The  question  as  to  the  shortest  usually  traveled  route  between  any  two  points  is 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  227 

633,  No  payment  f  of  mileage!  shall  be  made  to  any  officer    Mileage  to  be 

paid  by  Pay  De- 

except  by  a  paymaster  of  tbe  Army.1  partment. 


634.  That  hereafter  the  maximum  sum  to  be  allowed  pay-    Travel 
masters'  clerks  and  the  expert  accountant  of  the  Inspector-  ter's  clerks  and 


General's  Department  when  traveling  on  duty  shall  be  four  countan. 
cents  per  mile,  and,  in  addition  thereto,  when  transporta-  v.  27,  p.2473o.1893' 
tion  can  not  be  furnished  by  the  Quartermaster's  Depart- 
ment, the  cost  of  same  actually  paid  by  them,  exclusive  of 
sleeping  or  parlor  car  fare  and  transfers.    Act  of  February 
27,  1893  (27  Stat.  L.,  480). 

635.   When  an  officer  is   discharged  from  the 
except  by  way  of  punishment  for  an  offense,  he 


c 
be  allowed  transportation  and  subsistence  from  the  place14'  8-  22>v-  2'P- 

674  ;  Jan.  29,  1813, 

of  his  discharge  to  the  place  of  his  residence  at  the  time  c.  16,  s.  15,  v.  2  P. 

,.    ,  .  ,  „   ,  .  .     .       ,  796;  June  20,  1864, 

ot  his  appointment,  or  to  the  place  of  his  original  mus-c.i45,s.8,v.i3,P. 
ter  into  the  service.  The  Government  may  furnish  the  c.  235,  vnei8?p1872'; 
same  in  kind,  but  in  case  it  shall  not  do  so,  he  shall  be^v.iJplSl'.  c' 
allowed  travel-pay  and  commutation  of  subsistence,  accord-  Sec*  1289>  B'  s' 


a  question  of  fact,  and  to  be  determined  by  the  best  obtainable  evidence.  *  *  * 
The  time  required  in  making  the  journey,  the  rates  of  fare,  and  the  fact  that  an 
officer  should  be  absent  from  his  post  of  duty  for  the  shortest  possible  period  are 
important  elements  in  determining  the  shortest  usually  traveled  route  in  any  par- 
ticular case. 

Evidence  should  accompany  the  voucher  on  which  payment  is  made,  to  establish 
the  fact  that  the  distance  is  computed  by  the  route  which,  for  the  time  and  occasion, 
is  the  shortest  usually  traveled  route.  Mileage  can  in  no  case  be  allowed  for  any 
distance  in  excess  of  the  distance  actually  traveled,  and  if  the  distance  actually 
traveled  exceed  the  distance  by  the  shortest  usually  traveled  route,  mileage  can  be 
allowed  only  for  the  distance  by  the  shortest  usually  traveled  route.  1  Coinpt. 
Dec.,  115.  " 

When  it  appears  that  an  army  officer  was  directed  to  travel  on  military  duty  and 
had  no  order  to  stop  over,  or  delay  on  his  journey,  it  must  be  presumed  by  the  ac- 
counting officers  that  ho  was  directed  to  go  by  the  shortest  usually  traveled  route, 
without  necessary  delay,  and  he  will  be  allowed  only  the  cost  of  '"'through  limited 
tickets"  for  such  travel.  The  accounting  officer's  look  to  the  officer's  orders  as  to  the 
necessity  for  delay  en  route,  not  questioning  the  authority  of  the  War  Department 
to  determine  whether  the  officer's  duty  requires  that  lie  shall  stop  over  on  his  journey. 
1  Compt,  Dec.,  366. 

The  law  relating  to  the  cost  of  transportation  contemplates  that  army  officers 
traveling  on  duty  without  troops  shall  travel  over  the  usually  traveled  routes  in  the 
mode  usually  adopted  and  by  the  conveyances  usually  employed.  The  exigencies  of 
the  service  should  be  of  an  unusual  character,  not  admitting  of  even  the  possibility 
of  delay,  to  justify  the  officer  in  engaging  the  more  costly  transportation  in  fast  or 
limited  trains,  "bid. 

Officers  of  the  Army  and  Navy  on  duty  at  the  World's  Columbian  Exposition ; 
the  officer  in  charge  of  the  Hot  Springs  Reservation,  Ark.,  and  engineer  officers  on 
duty  under  the  orders  of  the  Commissioners  of  the  District  of  Columbia  are  entitled 
to  mileage  at  the  rate  of  8  cents  per  mile,  and  no  more,  under  the  act  of  July  24, 1876 
(19  Stat,  L.,  100),  and  other  statutes.  The  act  of  July  16,  1892  (27  Stat.'L.,  177), 
applying  only  to  the  appropriation  to  which  it  is  attacned._  Compt.  Dec.,  1893-94, 5, 
),  the  decisic 


96.     See,  also,  the  decision  of  the  Comptroller  of  the  Treasury  in  the  case  of 
Major  Halford.    Ibid.,  p.  275. 

*  In  determining  the  mileage  of  officers  of  the  Corps  of  Engineers  traveling,  with- 
out troops,  on  duty  connected  with  works  under  their  charge,  no  deduction  shall  be 
made  for  such  travel  as  may  be  necessary  on  free  or  bond-aided  or  land-grant  rail- 
ways. Section  15,  act  of  September  19,  1890  (26  Stat.  L.,  456). 

When  an  officer  of  the  Army  travels  under  orders,  without  troops,  on  any  free 
road  or  on  any  bond-aided  Pacific  railroad,  over  which  the  Quartermaster's  Depart- 
ment is  directed  by  law,  or  other  competent  authority,  to  furnish  transportation  in 
kind,  not  including  sleeping  or  parlor-car  accommodations,  he  is  presumed  to  have 
been  furnished  transportation  in  kind  by  the  United  States  and,  therefore ,  to  be  not 
entitled  to  mileage  for  such  travel.  This  presumption  is  rebutted,  however,  when 
he  shows  that  he  made  the  proper  effort  to  obtain  such  transportation  and  failed, 
without  fault,  under  circumstances  which  precluded  him  from  procuring  it.  But 
when  the  travel  is  over  any  such  bond-aided  road,  or  over  any  free  road,  and  there 
is  no  evidence  of  an  effort  to  obtain  a  transportation  order,  or  of  circumstances  which 

1  Travel  allowances  will  be  paid  by  the  chief  paymaster  of  the  department  in  which 
the  journey  is  completed.  (Par.  1322,  A.  K.,  1895.) 


228  THE   MILITARY    LAWS    OF   THE    UNITED    STATES. 

ing  to  his  rank,  for  such  time  as  "may  be  sufficient  for  him 
to  travel  from  the  place  of  discharge  to  the  place  of  his 
residence,  or  original  muster  into  service,  computed  at  the 
rate  of  one  day  for  every  twenty  miles.1 


precluded  the  officer  from  procuring  it,  ike  presumption  is  not  rebutted  and  mileage 
can  not  be  allowed.  3  Dig.  Compt.  Dec.,  209. 

An  officer  relieved  from  duty  at  a  station  and  granted  leave  of  absence  before 
assignment  to  another,  who  receives  an  order  of  assignment  before  expiration  of 
leave,  is  entitled  to  travel  allowances  from  the  place  where  ho  receives  the  order  to 
his  new  station.  (Par.  1332,  A  E.,  1895  ) 

An  officer  ordered  home,  at  his  own  request,  to  await  orders  is  entitled  to  mileage1' 
from  his  post  to  his  home,  such  a  journey  constituting  travel  under  orders.  William- 
son v.  IT.  S.,  23  Wall.,  411 ;  Phisterer  v.  U.  S.,  12  C.  Cls.  R.,  98,  and  94  U.  S.,  219.  Where 
an  officer  who  has  received  but  has  not  yet  taken  advantage  of  a  leave  of  absence  13 
ordered  to  convey  prisoners  to  another  post,  his  leave  is  to  that  extent  suspended, 
and  he  is  entitled  to  mileage.  Andrews  v.  U.  S.,  15  C.  Cls.  K.;  264. 

The  Army  Regulations  provide  that  the  expiration  of  an  officer's  leave  of  absence 
must  find  him  at  his  station.  His  station  means  his  permanent  station,  not  a  place 
to  which  he  was  temporarily  ordered  and  at  which  he  accepted  his  leave  of  absence. 
Andrews  v.  U.  S.,  15  C.  Cls.  R.,  264.  An  officer's  proper  station  can  not  be  changed  by 
his  being  ordered  to  perform  a  temporary  duty  while  on  leave  of  absence.  Ibid.  If 
an  officer  on  leave  of  absence  be  ordered  to  temporary  duty  at  the  place  where  he 
may  happen  to  be,  and  he  be  kept  there  until  after  his  leave  of  absence  expires  and 
then  be  ordered  to  his  proper  station,  he  will  not  be  entitled  to  mileage.  Barrv. 
1J.  S.,  14  C,  Cla.  K.,  272.  ' 

OFFICERS  TRAVELING  ON  DUTY. 

When  an  officer  is  ordered  without  troops  from  one  post  of  duty  to  another,  he  will 
proceed  by  tlie  shortest  usually  traveled  route,  without  unnecessary  delay.  Upon  his 
arrival  at'his  new  post  he  will  immediately  report  in  writing  to  the  commanding  offi- 
cer the  date  of  his  departure  from  his  former  station,  and  submit  a  copy  of  his  order, 
noting  thereon  the  date  he  received  it.  If  he  shall  appear  to  have  made  unnecessary 
delay  en  route,  he  will  be  required  to  explain  the  cause  thereof.  If  the  post  com- 
mander deem  the  explanation  unsatisfactory,  he  will  forward  the  same,  with  a  state- 
ment of  the  facts  in  the  case,  to  the  department  commander.  If  the  officer  be  supe- 
rior in  rank  to  the  post  commander,  the  required  report  will  be  made  by  the  officer 
himself  to  the  department  commander.  (Par.  65,  A.  R.,  1895.) 

-  Orders  detaching  an  officer  for  special  duty  will  direct  him  to  return  to  his  proper 
station  on  the  completion  of  the  duty  assigned  him,  when  it  is  intended  that  he  shall 
do  so.  (Par.  66,  ibid.) 

Delays  in  obeying  orders,  in  reporting  for  duty,  or  in  returning  to  duty  from  leave 
can  not  be  authorized  except  by  the  Secretary  of  War  or  the  Commanding  General 
of  the  Army.  Such  delays  will  be  regarded  as  leaves  of  absence,  unless  it  be  stated 
in  the  order  granting  them  that  they  are  in  the  interest  of  the  public  service.  (Par. 
67,  ibid.) 

Orders  contemplating  the  nayment  of  mileage  must  state  the  special  duty  enjoined, 
and  that  the  travel  directed  is  necessary  for  the  public  service.  They  will  not  direct 
travel  beyond  the  limits  of  the  command  of  the  officer  who  issues  them.  When  a 
general  officer  is  ordered  on  duty  beyond  the  limits  of  his  command,  he  may  order  an 
officer  of  his  staff  to  accompany  him ;  if  ordered  to  change  station,  he  may  order  the 
necessary  change  of  station  of  his  personal  staff.  (Par.  68,  ibid.) 

Staff  officers  not  serving  under  department  commanders  will  apply  to  the  War 
Department  for  orders  directing  necessary  travel  on  public  business.  ( Par.  69,  ibid. ; 

When  urgent  public  duty  has  compelled  travel,  without  authority  previously  ob 
tained,  the  case  will  be  immediately  reported  to  the  proper  superior  officer,  whose 
approval  in  subsequent  orders  will  be  accepted  as  though  previously  issued.  (Par. 
70,  ibid.) 

Orders  directing  officers  to  visit  Washington  for  the  settlement  of  their  accounts 
will  be  issued  only  by  the  Secretary  of  War,  (Par.  71,  ibid.) 

Officers  and  enlisted  men  reporting  as  witnesses  before  a  civil  court  should  receive 
from  the  civil  authorities  the  necessary  expenses  incurred  in  travel  and  attendance. 
Neither  mileage  nor  travel  allowances  will  be  paid  in  such  cases  by  the  War  Depart- 
ment. If,  however,  it  is  absolutely  necessary  to  furnish  them  transportation  in  kind 
to  enable  them  to  appear,  as  witnesses  for  the  Government,  before  a  civil  court  of 
the  United  States,  an  account  of  such  expenditure,  together  with  the  evidence  that 
they  were  properly  subpoanaed  and  did  attend  the  court,  will  be  forwarded  to  the 
War  Department  for  presentation  to  the  Department  of  Justice.  Officers  providing 

1  An  officer  who  voluntarily  quits  the  military  service  is  not  entitled  to  travel  pav. 
1  Compt.  Dec.,  370. 

An  officer  whose  resignation,  tendered  on  the  ground  of  physical  disability,  is 
accepted,  becomes  entitled  to  travel  pay,  provided  the  disability  did  not  exist  at  the 
time  of  bis  entering  the  service,  or  was  not  incurred  on  account  of  his  own  miscon- 
duct during  service.  The  length  of  service  is  material  evidence  in  determining 
whether  the  disability  existed  prior  to  entry  into  the  service.  Ibid. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


229 


STOPPAGES. 


Par. 

636.  Pay  of  officers  in  arrears  to 
bo  stopped. 


Par. 

637.  Withholding  officers'  pay. 


636.  In  case  of  deficiency  of  any  article  of  military  sup- 


for 


plies,  on  final  settlements  of  the  accounts  of  any  officer  3       p 
charged  with  the  issue  of  the  same,  the  value  thereof  shall    sec.  1304,  R.  s. 


such  transportation  will  notify  the  court,  or  the  marshal  thereof,  that  it  was  fur- 
nished to  enable  the  witnesses  to  perform  the  requisite  journeys  in  obedience  to  t^e 
summons.  (Par.  72,  ibid  ) 

TRAVEL  ALLOWANCES. 

When  an  officer  travels  without  troops  under  orders,  he  is  entitled  to  the  following 
allowances : 

(1)  To  mileage  at  the  rate  of  4  cents  per  mile  for  the  distance  between  the  points 
named  in  the  order,  such  distance  to  be  computed  over  the  shortest  usually  traveled 
route. 

(2)  To  reimbursement  of  the  cos  tof  transportation  actually  paid  by  him  over  the 
route  above  specified,  exclusive  of  sleeping  and  parlor  car  fares  and  charges  for  bag- 
gage.   Officers  will  not  be  reimbursed  for  cost  of  transportation  over  free  or  bond- 
aided  roads,  but  transportation  in  kind  over  such  will  be  furnished  by  the  Quarter- 
master's Department.     (Par.  1321,  A.  R.,  1895. 

Travel  allowances  will  be  paid  by  the  chief  paymaster  of  the  department  in  which 
the  journey  is  completed.  (Par.  1322,  ibid.) 

To  en  title  an  officer  to  travel  allowances  the  travel  must  be  specifically  ordered 
previous  to  its  commencement,  or  covered  by  certificate  that  the  urgency  of  the  duty 
was  such  as  to  prevent  his  obtaining  previous  orders,  and  accompanied  by  evidence 
of  approval  by  proper  authority.  Such  order  will  state  the  special  duty  enjoined, 
recite  that  the  travel  therein  directed  is  necessary  for  the  public  service,' and  direct 
the  officer  to  return  to  his  station  upon  completion  of  assigned  duty,  if  such  return 
is  contemplated.  An  order  for  travel,  partof  which  is  to  be  made  with  troops,  should 
direct  the  Quartermaster's  Department  to  furnish  transportation  for  so  much  of  the 
journey  as  is  to  be  performed  with  troops.  (Par.  1323,  ibid.) 

Orders  will  not  prescribe  lines  of  travel,  except  when  necessary,  and  then  the  rea- 
sons will  be  set  forth  in  the  order.  (Par.  1324,  ibid.) 

Tho  original  order,  or  certified  copy,  including  indorsements,  will  accompany  each 
voucher  for  travel  allowances.  (Par.  1325,  ibid.) 

Mileage  will  be  computed  in  accordance  with  the  lists  of  distances  compiled  by  the 
Paymaster-General,  whatever  the  route  traveled.  Exception  to  this  rule  will  be 
made  only  when  the  terms  of  the  order  or  the  impracticability  of  the  shortest  usually 
traveled  route  compel  the  officer  to  take  another,  or  when  the  journey  is  performed 
by  a  route  shorter  than  that  usually  traveled.  In  such  cases  travel  allowances"  will 
be  computed  over  the  actually  traveled  route.  (Par.  132(5,  ibid.) 

^Vhen  an  officer  on  leave  of  absence  is  ordered  to  rejoin  his  station,  he  will  not  bo 
entitled  to  travel  allowances  unless  the  public  service  requires  the  performance  of 
duty  en  route,  in  which  case  the  order  will  specify  the  duty,  the  necessity  therefor, 
and' the  points  at  which  the  duty  will  begin  and  end.  (Par.  1327,  ibid.) 

When  an  officer  is  ordered,  while  on  leave  of  absence,  to  accompany  a  detachment 
of  recruits  to  the  vicinity  in  which  his  regiment  is  serving,  and  on  the  completion 
of  this  duty  to  join  his  company,  he  returns  to  a  status  of  leave  as  soon  as  relieved 
from  duty  with  the  recruits,  and  will  proceed  to  join  his  company,  without  expense 
to  the  Government,  unless  the  distance  he  may  have  to  travel  without  troops  should 
be  in  excess  of  what  it  would  have  been  had  he  not  received  the  order.  (Par.  1328, 
ibid.) 

An  officer  on  leave  of  absence  ordered  to  temporary  duty  involving  travel  without 
troops  will  receive  travel  allowances  from  place  of  receipt  of  order  to  place  of  per- 
formance of  duty  and  return.  (Par.  1329,  ibid.) 

When  the  station  of  an  officer,  serving  either  with  or  without  troaps,  is  changed 
while  he  is  on  leave  of  absence,  he  will,  on  joining  his  new  station,  be  entitled  to 
travel  allowances  from  the  place  of  receipt  of  the  order  to  the  new  station,  provided 
the  journey  isroade  without  troops  and  the  distance  is  not  greater  than  that  from  the 
old  to  the  new  station ;  but  if  the  distance  be  greater  he  will  be  entitled  to  travel 
allowances  for  a  distance  equal  to  that  from  the  old  to  the  new  station  only.  Should 
it  be  necessary  for  the  officer  to  return  to  his  old  station  before  proceeding  to  the 
new,  authority  for  such  return  may  bo  given  by  the  officer  who  issued  the  order  for 
the  change  of  station.  In  such  case  the  order  for  change  of  station  will  carry  mileage 
only  from  the  old  to  the  new  station.  (Par.  1330,  ibid.) 

An  officer  under  orders  to  change  station  who  takes  advantage  of  a  leave  of  ab- 
sence before  he  joins  his  new  station  is  not  deprived  of  the  travel  allowances  to 
which  he  would  be  entitled  had  he  not  availed  himself  of  the  leave.  The  leave  of 
absence  merelv  suspends  the  execution  of  the  order  for  change  of  station,  and  at  the 
expiration  of  the  leave  the  officer  comes  under  the  operation  of  the  order,  and  in 
obeying  it  is  entitled  to  full  pay  for  the  time  necessary  to  perform  the  journey  from 
his  old'to  his  new  station.  (Par.  1331,  ibid.) 

An  officer  traveling  on  duty  in  connection  with  public  works  (not  arsenals,  military 
surveys,  or  explorations)  will  receive  travel  allowances  from  the  appropriation  for 
the  work,  but  if  there  be  no  appropriation  he  will  receive  travel  allowances  from  the 
Pay  Department.  (Par.  1333,  ibid.) 

In  the  following  cases  no  expense  of  travel  is  allowed:  In  joining  for  duty  upon 


230  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

be  charged  against  the  delinquent  and  deducted  from  his 
monthly  pay,  unless  he  shall  show  to  the  satisfaction  of  the 
Secretary  of  War,  by  one  or  more  depositions  setting  forth 
the  circumstances  of  the  case,  that  said  deficiency  was  not 
occasioned  by  any  fault  on  his  part.  And  in  case  of  dam- 
age to  any  military  supplies,  the  value  of  such  damage 
shall  be  charged  against  such  officer  and  deducted  from 
his  monthly  pay,  unless  he  shall,  in  like  manner,  show  that 
such  damage  was  not  occasioned  by  any  fault  on  his  part.1 

637'  The  pay  of  officers  of  the  Army  may  be  withheld 
under  section  seventeen  hundred  and  sixty-six  of  the 
sec.  1 766, u.s.  Raised  Statutes  on  account  of  an  indebtedness  to  the 
United  States  admitted  or  shown  by  the  judgment  of  a 
court,  but  not  otherwise  unless  upon  a  special  order  issued 
according  to  the  discretion  of  the  Secretary  of  War.2  Act 
of  July  16,  1892  (27  Stat.  L.,  177). 

first  appointment  to  the  military  service,  or  under  the  first  order  after  a  reinstate- 
ment or  reappointment,  or  under  an  order  to  effect  a  transfer  from  one  company  or 
regiment  to  another,  made  at  the  request  of  the  officers  transferred  Assistant  sur- 
geons, graduates  of  the  Military  Academy,  and  officers  appointed  from  the  ranks, 
Joining  under  first  order  after  appointment  or  commission,  are  excepted  from  these 
provisions.  (Par.  1334,  ibid.) 

Allowances  for  travel  of  officers  summoned  before  committees  of  Congress  are  not 
proper  charges  upon  the  appropriations  for  the  support  of  the  Army,  (Par,  1335. 
ibid.) 

!The  power  given  to  the  Secretary  of  War  to  order  a  stoppage  of  pay  against  a 
delinquent  officer  is  exclusive  and  discretionary,  but  is  not  to  be  asserted  against 
an  officer  acting  under  an  order  which  he  is  bound  to  obey,  and  as  to  which  he  is 
expressly  relieved  from  personal  liability.  Such  an  .abuse  of  power  would  not  tend 
to  preserve  but  to  subvert  military  order  and  discipline.  The  refusal  of  the  Secre- 
tary of  War  to  stop  an  officer's  pay  is  not  a  decision  upon  the  merits ;  it  will  not 
bind  the  Government  nor  preclude  the  Comptroller  from  causing  a  suit  to  be  brought 
against  the  officer;  it  merely  determines  that  the  officer  is  so  far  without  fault  that 
the  harsh  and  summary  remedy  of  stopping  his  pav  should  not  be  resorted  to. 
Smith  v.  U.  S.,  24  C.  Cls.  E.,  209/215 :  Billings  v.  U  S.,  23  ibid.,  166,  175. 

Where  a  paymaster  receives  no  notice  of  stoppage  and  innocently  pays  an  officer, 
the  overpayment  must  be  recovered  from  the  officer.  Smith  v.  U.  S.,  23  C.  Cls.  R.,  452. 

When  an  officer  has  been  overpaid,  or  is  indebted  to  the  United  States  for  money 
or  property,  or  has  failed  properly  to  account  for  the  same,  the  chief  of  the  bureau 
concerned  will  promptly  notify  him  of  the  amount  of  his  indebtedness,  or  his  failure 
to  account.  If  after  siicli  notice  ho  does  not  refund,  or  make  satisfactory  explana- 
tion, or  take  proper  action  within  a  reasonable  time,  the  matter  will  be  reported  to 
the  Secretary  of  War.  (Par.  1343,  A.  R.,  1895.) 

On  the  order  of  the  Secretary  of  War,  stoppages  may  be  made  against  the  pay  of 
officers  for  overpayments,  illegal  disbursement,  or  loss'through  fraud  or  neglect  of 
the  public  funds,  and  for  deficiencies  in,  loss  of,  or  damage  to,  military  supplies, 
unless  proof  be  furnished  that  the  deficiency,  loss,  or  damage  was  not  occasioned  by 
any  fault  on  their  part.  (Par.  1344,  ibid.) 

The  notice  of  stoppage  of  officers'  pay  will  be  prepared  in  the  form  of  a  monthly 
circular  to  paymasters,  advising  them  of  stoppages  outstanding  at  its  date.  This 
circular  will  be  submitted  to  the  Secretary  of  War  for  his  approval  prior  to  its  pub- 
lication. When  an  officer's  name  is  borne  thereon,  no  payment  of  salary  will  be 
made  to  him  which  is  not  in  accordance  with  the  stoppage  entry  made  against  his 
name  (Par.  1345.  ibid.) 

Overpayments  to  an  officer  will  be  deducted  on  the  first  payment  after  a  notice  of 
stoppage  against  him  is  received,  even  if  the  pay  accounts  have  been  assigned.  (Par. 

8  See  par.  658,  post,  for  deductions  on  account  of  sales  of  subsistence  on  credit. 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  231 

PAY  OF  ENLISTED  MEN. 

Par.  j  Par. 

638.  Rates  of  pay  to  enlisted  men.     652.  Noncommissioned  officers  in 

639.  Retained  pay.  Mexican  war. 


640.  Secretary  of  War  to   deter. 

mine  conduct. 

641.  Retained  pay  to  bear  interest. 

642.  Retaining  of  pay  discontin- 

ued, except  deductions  for 
Soldiers'  Home. 

643.  Re-enlistment  pay. 

644.  Continuous  service  pay. 

645.  Period    extended    to    three 


653.  Travel    allowances    to    dis- 

charged soldiers. 

654.  Deposits  of  soldiers'  savings. 

655.  Interest  on  deposits. 

656.  Regulations  for  deposits  to 

be  made  by   Secretary  of 
War. 

657.  Deposits     payable     at    dis- 

charge. 


months.  !  658.  Deductions   for  rations  pur- 

646.  Pay  of  retired  enlisted  men.  j  chased  by  officers. 

647.  Pay  during  captivity  j  659.  Deductions  for  articles  pur- 

648.  Indian  scouts.  chased  by  enlisted  men. 

649.  Hospital  matrons  and  nurses.  !  660.  Deductions  for  tobacco  pur- 

650.  Soldiers'  pay  not  assignable,   j  chased. 

651.  Recruits   to    have  credit  at    661.  Pay  of  volunteers. 

depots. 

638.  The  monthly  pay  of  the  following  enlisted  men  ofnjnayofenli8ted 
the  Army  shall,  during  their  first  term  of  enlistment,  be  as  12f  ^V^9' c- 
follows,  with  the  contingent  conditions  thereto,  hereinafter  sis!  '  ^ '  '    ^ 
provided :  ieo,  sf  i,  v.  17,  p. 

Sergeant-majors    of   cavalry,    artillery,    and    infantry,  1394,  v.  28,  p.  216. 

.  -,  i    i-.  SGC*  1279«  R»  S. 

twenty-three  dollars.  sec.  isso,  B.  s. 

Quartermaster-sergeants  of  cavalry,  artillery,  and  infan- 
try, twenty-three  dollars. 

Chief  trumpeters  of  cavalry,  twenty-two  dollars. 

Principal  musicians  of  artillery  and  infantry,  twenty- 
two  dollars. 

Saddler  sergeants  of  cavalry,  twenty- two  dollars. 

First  sergeants  of  cavalry,  artillery,  and  infantry,  twenty- 
five  dollars.1 

Sergeants  of  cavalry,  artillery,  and  infantry,  eighteen 
dollars.1 

Corporals  of  cavalry  and  light  artillery,  fifteen  dollars. 

Corporals  of  artillery  and  infantry,  fifteen  dollars. 

Saddlers  of  cavalry,  fifteen  dollars. 

Blacksmiths  and  farriers  of  cavalry,  fifteen  dollars. 

Trumpeters  of  cavalry,  thirteen  dollars. 

Musicians  of  artillery  and  infantry,  thirteen  dollars. 

Privates  of  cavalry,  artillery,  and  infantry,  thirteen 
dollars. 


1  The  monthly  pay  of  first  sergeants  of  cavalry,  .artillery,  and  infantry  was  fixed 
at  $25,  and  that  of  sergeants  of  the  same  arms  of  service  at  $18,  by  the  act  of  Febru- 
ary 27,  1893(27Stat.L.,478). 


232  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Hospital- stewards,  first  class,  forty-five  dollars.1 
«    [Acting  hospital  stewards,  twenty-five  dollars.]1 

[Privates  of  the  Hospital  Corps,  eighteen  dollars.]1 

Ordnance -sergeants  of  posts,  post  commissary2  and 
quartermaster  sergeants,2  thirty-four  dollars. 

Sergeant-majors  of  engineers,  thirty-six  dollars. 

Quartermaster-sergeants  of  engineers,  thirty-six  dollars. 

Sergeants  of  engineers  and  ordnance,  thirty-four  dollars. 

Corporals  of  engineers  and  ordnance,  twenty  dollars. 

Musicians  of  engineers,  thirteen  dollars. 

Privates  (first  class)  of  engineers  and  ordnance,  seven- 
teen dollars. 

Privates  (second  class)  of  engineers  and  ordnance,  thir- 
teen dollars. 

[Sergeants  (first  class)  of  the  Signal  Corps,  forty-five 
dollars.] 3 

[Sergeants  (second  class)  of  the  Signal  Corps,  thirty- 
four  dollars.] 

Artificers,  cavalry,  artillery,  and  infantry,  fifteen  dollars. 

Wagoners,  cavalry,  artillery,  and  infantry,  fourteen 
dollars.4 

Pay  of  chief     The  chief  musicians  of  regiments   shall  receive  sixty 
sec.  s,  Aug.  i,  dollars  a  month  and  the  allowances  of  a  quartermaster- 

1894,  v.  28,  p.  21 6. 

sergeant.0 

RETAINED   PAY. 

639<  To  the  rates  of  Pav  stated  in  the  preceding  section 
dollar  Per  month  shall  be  added  for  the  third  year  of 
Vsecpi28i  R  s  enlistment,  one  dollar  more  per  month  for  the  fourth  year, 
and  one  dollar  more  per  month  for  the  fifth  year,  making 
in  all  three  dollars'  increase  per  month  for  the  last  year  of 
the  first  enlistment  of  each  enlisted  man  named  in  said 
section.  But  this  increase  shall  be  considered  as  retained 
pay,  and  shall  not  be  paid  to  the  soldier  until  his  discharge 

JThe  monthly  pay  of  hospital  stewards  fixed  at  $45,  and  that  of  acting  hospital 
stewards  at  $25,  by  the  act  of  March  1,  1887  (24  Stat.  L.,  435).  The  pay  of  privates 
of  the  Hospital  Corps  was  fixed  at  $18  per  mouth  by  the  act  of  July  13,  1892  (27  Stat. 
L.,  120). 

*  The  moTithly  pay  of  post  commissary-sergeants  was  fixed  at  $34  by  the  act  of 
March  3,  1873  (17  Stat,  L.,  485),  and  that  of  post  quartermaster-sergeants  at  the  same 
rate  by  the  act  of  July  5, 1884  (23  Stat.  L.,  107). 

3  The  pay  of  sergeants  of  the  first  class  in  the  Signal  Corps  was  fixed  at  $45  per 
month  by  the  act  of  October  1,  1890  (26  Stat.  L.,  653).     The  pay  of  sergeants  of  the 
second  class  in  the  Signal  Corps  was  fixed  at  $34  per  mouth  by  the  act  of  June  20, 
1878  (20  Stat.  L.,  219). 

The  enlisted  men  of  the  Army  Service  Corps,  stationed  at  the  Military  Academy, 
receive  the  name  pay  and  allowances  as  enlisted  men  of  corresponding  grades  in  the 
artillery.  Act  of  June  20, 1890  (26  Stat.  L.,  653).  See  the  chapters  entitled  ENLISTED 
MEX  and  THE  MILITARY  ACADEMY. 

4  For  pay  of  Indian  scouts  see  par.  648  post. 

•By  the  terms  of  section  3,  act  of  August  1,  1894  (28  Stat.  L.,  216),  chief  musicians, 
artificers,  and  wagoners  theretofore  excluded  from  the  benefits  of  the  act  of  May  15, 
1872  (paragraphs  643, 614  post),  became  entitled  to  said  benefits. 


THE   MILITARY    LAWS    OF   THE    UNITED    STATES.  233 

from  the  service,  and  shall  be  forfeited  unless  lie  serves 
honestly  and  faithfully  to  the  date  of  discharge.1 
640.  That  the  Secretary  of  War  shall  determine  what    secretary  of 

War  to  determine 

misconduct  shall  constitute  a  failure  to  render  honest  and  conduct. 
faithful  service  within  the  meaning  of  this  act;  but  no  sol- 
dier who  has  deserted  at  any  time  during  the  term  of  a 


enlistment  shall  be  deemed  to  have  served  such  term  hon-  26Jp  "s?6'  1890)V' 
estly  and  faithfully.2     Act  of  June  16,  1890  (26  Stat.,  L.,  157).  " 

641.  That  the  sums  retained  from  the  monthly  pay  of   Retained  pay 

J    *•     J         to  bear  interest. 

enlisted  men,  in  accordance  with  sections  twelve  hundred  Juneie,  isoo.v. 
and  eighty-one  and  twelve  hundred  and  eighty-two  of  the 
Kevised  Statutes,3  shall  be  treated  as  deposits,  upon  which 
interest  shall  be  paid  as  provided  in  sections  thirteen  hun- 
dred and  five,  thirteen  hundred  and  six,  thirteen  hundred 
and  seven,  and  thirteen  hundred  and  eight4  of  the  Kevised 
Statutes,  the  said  sums  to  bear  interest  from  the  end  of 
the  year  of  the  soldier's  enlistment  in  which  they  shall 
have  accrued.  Act  of  June  16,  1890  (26  Stat.  L.,  157). 

642.  That  hereafter  no  pay  shall  be  retained,  but  this    NO  pay  to  be  re- 

,_        .  '  tained  hereafter. 

provision  shall  not  apply  to  deductions  authorized  on  ac-    Mar.  ie,  isoe,  v. 
count  of  the  Soldiers'  Home.5     Act   of  March  16,  1896  (^29'p'6' 
Stat.  L.,  60). 

RE-ENLISTMENT   AND   CONTINUOUS   SERVICE   PAY. 

643.  All  enlisted  men  mentioned  in  section  twelve  hun     Ee-eniistment 
dred  and  eighty,  who,  having  been  honorably  discharged,  pJ£ay  15,  1372,  c. 

__  .  160,  s.  3,  v.  17,  p. 

H'he  act  of  June  16,  1890  (26  Stat  L.,  157),  which  required  $4  per  month  to  be  retained  c  247  s.  2  v.'  10,  p'. 
from  the  pay  of  all  enlisted  men  in  the  Army  during  their  first  year  of  enlistment  575.  AU£  1  1894 
was  repealed  by  section  3  of  the  act  of  August  1.  1894  (28  Stat,  L'.,  215).     The  proyi-  Vt  28  p.  215.  ' 
sions  of  this  section  extended  to  all  enlisted  men  in  the  Army,  except  general-service    'icp«  1282  R  S 
clerks  and  messengers,  by  section  3  of  the  act  of  August  1,  1894  (28  Stat.  L.,  215). 

To  entitle  the  soldier  to  this  retained  pay,  it  is  necessary  to  show,  first,  his  dis- 
charge from  the  service  ;  second,  an  honest  and  faithful  service  to  the  date  of  his 
discharge.  It  is  not  necessary  that  such  forfeiture  should  have  been  made  in  pur- 
suance of  the  sentence  of  a  court-martial.  U.  S.  v  Kingsley,  137  U.  S.,  87,  90. 

Retained  pay  is  authorized  by  law.  The  Secretary  of  War  has  no  control  over  it. 
He  only  determines  whether  the  service  has  been  honest  and  faithful.  The  opera- 
tion of  thel  aw  follows  immediately  Tipon  his  decision,  and  either  vests  in  the  soldier 
the  right  to  receive  the  pay  or  deprives  him  of  it,  according  to  the  character  of  the 
service  he  has  rendered.  3  Dig.  Compt.  Dec  ,  231. 

2  Under  the  authority  conferred  by  this  statute  the  Secretary  of  War  has  decided 
that  retained  pay  will  be  forfeited  for  tho  following  causes  : 

(1)  Desertion. 

(2)  When  the  soldier  is  in  confinement  under  a  general  court-martial  sentence 
expressly  imposing  imprisonment  until  or  beyond  the  expiration  of  his  term  ;  when 
discharged  under  sentence  of  general  court-martial;  when  discharged  by  order  from 
the  War  Department  specifying  forfeiture,  or  because  of  imprisonment  by  the  civil 
authority. 

(3)  When  the  soldier  is  discharged  for  minority  concealed  at  enlistment,  or  for 
other  cause  involving  fraud  in  enlistment,  or  for  disability  caused  by  his  misconduct. 

(4)  Upon  the  approved  finding  of  a  board  of  officers  called  under  paragraph  148, 
that  the  soldier  has  not  served  honestly  and  faithfully  to  the  date  of  discharge. 

The  cause  of  forfeiture  will  be  stated  on  the  muster  and  pay  rolls  and  on  the  final 
statements  of  the  soldier.  (Par.  1369,  A.  K.,  1895.) 

^Paragraphs  639  and  640  ante. 

^Paragraphs  654,  655,  656  and  6bl  post. 

1  Since  March  16,  1896,  paragraphs  639,  640,  and  641,  have  applied  only  to  the  settle- 
ment of  the  accounts  of  enlisted  men  in  whose  cases  retained  pay  had  accrued  prior 
to  tho  passage  of  this  act. 


234  THE   MILITARY   LAWS   OP1   THE   UNITED    STATES. 

have  re-enlisted  or  shall  re-enlist  within  three  months  there- 
after, shall,  after  five  years'  service,  including  their  first 
enlistment,  be  paid  at  the  rate  allowed  in  said  section  to 
those  serving  in  the  fifth  year  of  their  first  enlistment :  Pro- 
vided, That  one  dollar  per  month  shall  be  retained  from  the 
pay  of  the  re  enlisted  men,  of  whatever  grade,  named  in 
section  twelve  hundred  and  eighty  one  during  the  whole 
period  of  their  re-enlistment,  to  be  paid  to  the  soldier  on 
his  discharge,  but  to  be  forfeited  unless  he  shall  have 
served  honestly  and  faithfully  to  the  date  of  discharge.1 
Act  of  August  1,  1894  (28  Mat.  L.,  215}. 

continuous  644.  Every  soldier  who,  having  been  honorably  dis- 
t.  charged,  re-enlists  within  three  months  thereafter,  shall  be 
further  entitled,  after  five  years'  service,  including  his  first 
:  enlistment,  to  receive,  for  the  period  of  five  years  next 
"s  'v^sfp1^94'  thereafter,  two  dollars  per  month  in  addition  to  the  ordi- 
sec.i284,R.s.  narv  pav  Of  ^s  gra£ej  and  for  each  successive  period  of 
five  years  of  service,  so  long  as  he  shall  remain  continu- 
ously in  the  Army,  a  further  sum  of  one  dollar  per  month. 
The  past  continuous  service,  of  soldiers  now  in  the  Army, 
shall  be  taken  into  account,  and  shall  entitle  such  soldier 
to  additional  pay  according  to  this  rule ;  but  services  ren- 
dered prior  to  August  fourth,  eighteen  hundred  and  fifty- 
four,  shall  in  no  case  be  accounted  as  more  than  one 
enlistment. 

ecFert°od  ethernede     645-  That  tne  period  within  which  soldiers  may  re-enlist 
WRnts.Ssecs.i282  w^n  ^ne  benefits  conferred  by  sections  twelve  hundred  and 
12A'dI?itdo(naie^»n^"^wo  au^  twelve  hundred  and  eighty-four2  of  the 
pTu    i  1894  a  Revised  Statutes,  be,  and  the  same  is  hereby,  extended  to 
3,  v.  28, p.' 215. '    three  months  j   and  hereafter  every  enlisted  man  in  the 
Army,  excepting  general  service  clerks  and  general  service 
messengers,  shall  be  entitled  to  all  the  benefits  conferred 
by  sections  twelve  hundred  and  eighty-one3  and  twelve 
hundred  and  eighty-two2  of  the  Revised  Statutes:    Pro- 
mV^   That  to  entitle  them  to  the  additional  pay  author- 
ized by  section  twelve  hundred  and  eighty-one,4  for  men 
serving  in  the  third,  fourth,  and  fifth  years,  the  service 
must  have  been  continuous  within  the  meaning  of  this 
section.4,    Sec.  5,  act  of  August  1,  1894  (28  Stat.  L.,  215}. 

1  The  authority  to  retain  pay  conferred  by  section  1281,  Revised  Statutes  (paragraph 
639,  ante),  was  withdrawn  as  to  all  enlisted  men  by  the  act  of  March  16, 1896  (29  Stat. 
L.,  p.  60).     See  paragraph  642,  ante. 

2  Paragraphs  643  and  644,  ante. 

3  Paragraph  639,  ante. 

«  Page  639,  ante.  Section  1283,  Revised  Statutes,  contains  the  provision  that  enlisted 
men,  now  in  the  service,  shall  receive  the  rates  of  pay  established  in  this  chapter 
according  to  the  length  of  their  service. 

The  act  of  February  27,  1893  (27  Stat.  L.,  478),  which  prohibited  the  reenlistmeut 
of  privates  of  over  ten  years'  service  or  who  were  over  35  years  old,  except  such  as 
and  served  as  enlisted  men  for  twenty  years  or  upward,  was  repealed  by  the  act  of 
August  1, 1894  (28  Stat.  L.,  215),  and  the  provisions  of  section  1284,  Revised  StatuteH, 
were  extended  to  all  enlisted  men  in  the  Army,  except  general-service  clerks  and 
messengers.  See,  also,  paragraphs  1365, 1366,  and  1367,  Army  Regulations,  1895. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  235 


PAY   OF   RETIRED  ENLISTED   MEN. 

646.  That  when  an  enlisted  man  has  served  as  such 
thirty  years  in  the  United  States  Army  or  Marine  Corps, 

either  as  private  or  non-commissioned  officer,  or  both,  he    Sec.  lass,  R.S. 

shall  by  application  to  the  President  be  placed  on  the26,p.504;Mar.  ie,' 

retired  list  hereby  created,  with  the  rank  held  by  him  at 

the  date  of  retirement,  and  he  shall  receive  thereafter 

seventy-five  per  centum  of  the  pay  and  allowances  of  the 

rank  upon  which  he  was  retired:  Provided,  That  if  said 

enlisted  man  had  war  service  with  the  Army  in  the  field, 

or  in  the  Navy  or  Marine  Corps  in  active  service,  either  as 

volunteer  or  regular,  during  the  war  of  the  rebellion,  such 

war  service  shall  be  computed  as  double  time  in  computing 

the  thirty  years  necessary  to  entitled  him  to  be  retired.1 

Act  of  September  30,  1890  (26  Stat.  L.,  504).     That  here- 

after a  monthly  allowance  of  nine  dollars  and  fifty  cents 

be  granted  in  lieu  of  the  allowance  for  subsistence  and 

clothing.2    Act  of  March  16,  1896  (29  Stat.  L.,  62). 

MISCELLANEOUS  PROVISIONS. 

647.  Every  non-commissioned  officer  and  private  of  the    Payduring 
Regular  Army,  and  every  officer,  non-commissioned  officer,  caHar.Vo,'i8i4,  c. 
and  private  of  any  militia  or  volunteer  corps  in  the  service  nb.8' 

of  the  United  States  who  is  captured  by  the  enemy,  shall    Sec-1288'B-s- 

be  entitled  to  receive  during  his  captivity,  notwithstanding 

the  expiration  of  his  term  of  service,  the  same  pay,  sub- 

sistence, and  allowance  to  which  he  may  be  entitled  while 

in  the  actual  service  of  the  United  States;  but  this  pro- 

vision shall  not  be  construed  to  entitle  any  prisoner  of  war 

of  such  militia  corps  to  any  pay  or  compensation  after  the 

date  of  his  parole,  except  the  traveling  expenses  allowed 

by  law. 

648.  Indians,  enlisted  or  employed  by  order  of  the  Pres-  sc^ft°f 
ident  as  scouts,  shall  receive  the  pay  and  allowances 


cavalry  soldiers.     That  so  much  of  the  Army  appropria-  299,  s.  G,  v.  w,  p 
tion  act  of  twenty-fourth  July,  eighteen  hundred  and  sev-    s'ec.i276,R.s. 
enty-six,  as  limits  the  number  of  Indian  scouts  to  three 
hundred  is  hereby  repealed;  and  sections  ten  hundred  and 
ninety-four  and  eleven  hundred  and  twelve  of  the  Eevised 
Statutes,  authorizing  the  employment  of  one  thousand 
Indian  scouts,  are  hereby  continued  in  force:   Provided, 

'This  statute  replaces  the  act  of  February  14,  1885  (23  Stat.  L.,  305),  on  the  same 
subject. 

2  See  also  the  title  Retirement  of  Enlisted  Men  in  the  chapter  entitled  ENLISTED 
MEN. 


236  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

That  a  proportionate  number  of  nou- commissioned  officers 
may  be  appointed.  And  the  scouts,  when  they  furnish 
their  own  horses  and  horse- equipments,  shall  be  entitled 
to  receive  forty  cents  per  day  for  their  use  and  risk  so  long 
as  thus  employed.  Act  of  August  12, 1876  (19  Stat.  L.,  131). 
649.  Hospital  matrons  in  post  or  regimental  hospitals 
^  shall  receive  ten  dollars  a  month,  and  female  nurses  in  gen- 

Aim1,  lo,  loU^  c.  ^  J  _  ,—  * 

9  s. 5,  v. 2,  p.  134;  erai  hospitals  shall  receive  forty  cents  a  day.     One  ration 
t.  ogv3'i2,  p C288;  in  kind  or  by  commutation  shall  be  allowed  to  each. 

July  4.  1864.  res. 

75,  v.  13,  p.  410.     Sec.l277,R.S. 

Soldiers-  pay     650.  No  assignment  of  pay  by  a  non-commissioned  offi- 
"M^THM  c  cer  or  Private,  previous  to  his  discharge,  shall  be  valid.1 

37%aiv'l.    Sec.  1291,  R.S. 

651.  That  traders  and  laundrymen  at  depots  for  recruits 
f°r  re  in  tne  Army  be?  an(l  hereby  are,  authorized  to  furnish  such 

JTe  oo   J?o?'  recruits,  on  credit,  with  laundry  work  and  such  articles  as 

6C.  o,  V.  ^^1  P.  1^^. 

may  be  necessary  for  their  cleanliness  and  comfort,  at  a 
total  cost  not  to  exceed  seven  dollars  in  value  per  man. 
That  muster  and  pay  rolls  be  made  out  showing  the 
amounts  the  recruits  respectively  owe  to  the  traders  and 
lauudrymen,  and  signed  by  them  before  leaving  the  depot, 
and  that  the  traders  and  laundrymen  be  paid  on  such  rolls, 
the  amount  paid  for  each  recruit  to  be  noted  accordingly 
on  the  muster  and  descriptive  rolls,  in  order  that  it  may 
be  withheld,  after  he  joins  his  company,  by  the  paymaster, 
at  the  first  subsequent  payment,  under  such  rules  and  reg- 
ulations as  may  be  adopted  by  the  War  Department: 
Provided,  That  this  provision  shall  apply  only  to  recruits 
on  their  enlistment,  and  the  credit  shall  only  be  allowed  on 
the  written  order  of  the  regular  recruiting  officer  at  said 
tation.2  See.  3,  act  of  June  30,  1882  (22  Stat.  L.,  122). 

652.  Non- commissioned  officers  who  served  in  the  war 
Mexico,  and  have  been  recommended  by  the  com- 

6i,  s.  i?,'v.  9,V  manding  officers  of  their  regiments  for  promotion  by  brevet 

c.274,8?f,v.'io,p'.  to  the  lowest  grade  of  commissioned  officer,  but  have  not 

5 'sec.  1286,  R.S.  received  such  recommended  promotion,  shall  be  entitled 

to  additional  pay  at  the  rate  of  two  dollars  per  month, 

although  they  may  not  have  remained  continuously  in  the 

service. 

1  The  transfer  by  an  enlisted  man  of  a  claim  for  pay  due  on  his  final  statements 
will  be  recognized  only  when  made  after  discharge,  in  writing,  indorsed  on  the  iinal 
statements,  signed  by  the  soldier,  and  witnessed  by  a  commissioned  officer  or  by  some 
other  reputable  person  known  to  the  paymaster.     The  person  witnessing  the  trans- 
fer must  indorse  on  the  discharge  the  fact  of  transfer  of  the  final  statements,  and  on 
the  final  statements  the  fact  that  such  indorsement  has  been  made  on  the  discharge 
(Par.  1388,  A.  R.,  1895.) 

2  The  act  of  June  28,  1893  (27  Stat.  L.,  426),  directing  that  no  more  post  traders  be 
appointed,  will  operate  to  restrict  this  privilege  to  laundrymen  at  depots.    Paragraph 
1192,  Army  Regulations,  1895,  requires  all  laundry  charges  to  be  charged  to  the 
recruit  on  his  clothing  account  and  to  be  noted  on"  his  descriptive  and  assignment 
card. 


THE    MILITARY    LAWS   OF    THE    UNITED    STATES.  237 

TRAVEL  ALLOWANCES  OF    DISCHARGED  ENLISTED  MEN.1 

653.    When  a  soldier  is   discharged  from  the  service.    Travel  allow- 

R II C  6  S     t)O     Cl  1  8  • 

except  by  way  of  punishment  for  an  offense,  he  shall  ^f^|Jldl5|- 
be  allowed  transportation  and  subsistence  from  the  place  conduct  proviso. 

tj£tn«  llj  1812,  c. 

of  his  discharge  to  the  place  of  his  enlistment,  enroll- u,  s.  22,  v.  2,674 ; 

.  rm         ^---1  Jftn.  29,loJ  3,c.  ID. 

inent,  or  original  muster  into  the  service.    The  Govern- s.  15,  v.  2,  P.796; 

,.,,,.  •-      i      n         .  June  20.  1864,  c. 

rnent  may  furnish  the  same  in  kind,  but  in  case  it  shall  not  145,  s.  s,  v.  13,  P. 
do  so,  he  shall  be  allowed  travel-pay  and  commutation  ofls?!,  c.f285?v.  is, 
subsistence  for  such  time  as  may  be  sufficient  for  him  to  TOTT^  eV^v.  19, 
travel  from  the  place  of  discharge  to  the  place  of  his  en-  i^lfv.  2ijap.'  es! 
listmeut,  enrollment,  or  original  muster  into  the  service,    Sec* I290}  E* St 
computed  at  the  rate  of  one  day  for  every  twenty  miles: 
Provided,  That  no  enlisted  man  discharged  by  order  of  the 
Secretary  of  War  for  disability  caused  by  his  own  miscon- 
duct shall  be  entitled  to  the  travel  allowances  provided  for 
in  section  twelve  hundred  and  ninety  of  the  Bevised  Stat- 
utes.2   Act  of  March  16,  1896  (29  JStat.  L.,  63}. 

1  The  travel  allowances  of  enlisted  men  consist  of  transportation  and  subsistence, 
which  are  furnished  in  kind  in  all  practicable  cases.  For  statutory  provisions  re- 
specting transportation  see  note  1  to  paragraph  545,  ante;  for  provisions  respecting 
subsistence  see  paragraph  580,  ante. 

2An  enlisted  man  of  the  Army  is  not  entitled  to  transportation  from  the  place  of 
his  discharge  to  the  place  of  his  enlistment,  under  section  1286,  Revised  Statutes, 
unless  his  connection  with  the  service  be  actually  and  finally  severed.  Such  con- 
nection is  not  so  severed  when  he  is  discharged  to  accept  promotion,  discharge  in 
that  case  being  a  formality  attendant  upon  his  promotion.  Reichmann  v.  U  S.,24 
C.  Cls.  R.,  485.  A  soldier  discharged  at  his  own  request  is  not  entitled  to  travel 
pay.  Thornton  v.  U.  S.,  27  ibid.,  342. 

Traveling  allowances  to  discharged  soldiers  are  computed  by  taking  the  distance 
in  miles  by  the  shortest  usually  traveled  route  from  place  of  discharge  to  that  of 
enlistment,  and  allowing  one  day's  pay,  and  subsistence  at  the  rate  of  30  cents,  for 
every  20  miles  of  travel.  If  in  the  computation  there  remains  a  fraction  of  10  miles 
or  more,  it  will  be  reckoned  as  a  full  day ;  if  less,  it  will  not  be  considered.  If  trans- 
portation has  been  furnished  for  any  part  of  the  distance,  that  part  will  be  ex- 
cluded from  the  computation  of  travel  pay,  but  subsistence  for  the  full  distance  will 
be  allowed.  (Par.  1385,  A.  R.,  1895.) 

An  enlisted  man  discharged  for  minority  concealed  at  enlistment,  or  for  other 
cause  involving  fraud  on  his  part  in  the  enlistment,  is  not  entitled  to  pay  and  allow- 
ances, including  those  for  travel,  and  will  not  receive  final  statements  unless 
deposits  or  detained  pay  are  due  him,  in  which  case  final  statements,  containing 
only  a  list  of  his  deposits  or  the  amount  of  detained  pay,  will  be  furnished.  (Par. 
1386,  ibid.) 

Recmits  are  entitled  to  pay  and  allowances  when  discharged  on  certificates  of 
disability.  When  discharged'  for  any  cause  involving  fraud  on  their  part  at  enlist- 
ment, paragraph  1386  will  govern.  (Par.  1387,  ibid.) 


An  enlisted  man  charged  with  desertion  will  not  receive  pay  until  his  offense  has 
been  investigated  by  a  court-martial  or  he  has  been  restored  to  duty  without  trial. 
(Par.  1380,  A.R.  1895.) 

Every  deserter  forfeits  all  pay  and  allowances  due  at  the  date  of  desertion.  Stop- 
pages and  forfeitures  then  due  will  be  deducted  from  his  arrears  of  pay,  and,  if  not 
so  satisfied,  from  pay  due  after  apprehension.  The  company  commander  will  note 
upon  the  first  muster  roll  after  apprehension  all  data  necessary  to  a  complete  settle- 
ment of  the  soldier's  account  from  the  date  of  last  payment,  and  will  carry  the 
account  to  subsequent  rolls  until  the  settlement  is  made.  No  settlement  of  the  pay 
account  of  any  enlisted  man  will  be  made  on  the  rolls  until  sufficient  pay  shall  hajre 
accrued  to  satisfy  all  dues  to  the  United  States  and  pay  a  balance  to  the  soldier. 
The  required  data  will  include  date  of  last  payment,  desertion,  and  apprehension, 
credits  at  date  of  desertion  on  account  of  clothing,  unsatisfied  forfeitures  under 
prior  sentences,  and  dues  to  the  United  States  at  date  of  desertion  on  account  of 
clothing,  subsistence,  ordnance,  etc.  If,  while  absent  in  desertion,  he  illegally 
enlisted  in  another  organization,  the  date  of  last  payment  in  such  enlistment  and  all 
stoppage  due  the  United  States  at  date  of  surrender  or  apprehension  will  be  stated. 
(Par,  1381,  ibid.) 


238  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

DEPOSITS. 
man  of  the  Army  may  deposit  his 


May  is,  1872,  c.  savings,  in  sums  not  less  than  five  dollars,  with  any  Army 
m  ;8MarT3,  1883,'  pay  master,  who  shall  furnish  him  a  deposit-book,  in  which 
v'sec!i305,:R.s.  shall  be  entered  the  name  of  the  paymaster  and  of  the 
soldier,  and  the  amount,  date,  and  place  of  such  deposit. 
The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  other  public  funds,  and  shall  pass  to  the  credit 
of  the  appropriation  for  the  pay  of  the  Army,  and  shall  not 
be  subject  to  forfeiture  by  sentence  of  court-martial,  but 
shall  be  forfeited  by  desertion,  and  shall  not  be  permitted  to 
be  paid  until  final  payment  on  discharge,  or  to  the  heirs  or 
representatives  of  a  deceased  soldier,  and  that  such  deposit 
be  exempt  from  liability  for  such  soldier's  debts:  Provided, 
That  the  Government  shall  be  liable  for  the  amount  depos- 
ited to  the  person  so  depositing  the  same.1 

interest  on  de-  655.  For  any  sums  not  less  than  five  dollars  so  deposited 
p°May  is,  1872,  c.  for  the  period  of  six  months  or  longer,  the  soldier,  on  his 
ml  8'  '  P'  final  discharge,  shall  be  paid  interest  at  the  rate  of  four 

Sec.  1306,  R.S. 

per  centum  per  annum.2 
Regulations  for     656.  The  system  of  deposits  herein  established  shall  be 

deposits     to    be  J 

made  by  Secre-  carried  into  execution  under  such  regulations  as  may  be 

tary  of  War 

May  is,  1872,  c.  established  by  the  Secretary  of  War.3 

161,  s.4,  v.  17,  p. 
117. 

Sec.  1307,  B.  S.  ^he  act  of  June  16,  1890  (26  Stat.  L..  157),  contains  the  requirement  that  the  sums 
retained  from  the  monthly  pay  of  enlisted  men  under  sections  1281  and  1282,  Revised 
Statutes,  shall  be  treated  as  deposits  upon  which  interest  shall  be  paid  in  accordance 
with  sections  1305,  1306,  1307,  and  1308,  Revised  Statutes. 

2  Amended  by  the  act  of  March  3,  1883  (22  Stat.  L.,  456),  so  as  to  authorize  the  de 
posit,  at  interest,  of  sums  not  less  than  $5  in  amount. 

8  Under  the  authority  conferred  by  this  statute  the  following  regulations  have  been 
prepared  and  promulgated  by  the  Secretary  of  War  : 

Any  enlisted  man,  not  retired,  may  deposit  his  savings  with  any  paymaster  in 
sums  not  less  than  $5,  the  same  to  remain  so  deposited  until  final  payment  on  dis- 
charge. The  paymaster  will  furnish  the  depositor  with  a  book  in  which  each  de- 
posit, with  name  of  depositor,  date,  place,  and  amount,  in  words  and  figures,  will  bo 
entered  in  the  form  of  a  certificate,  signed  by  the  paymaster  and  company  com- 
mander. The  company  commander  will  keep  in  the  company  record  book  an  account 
of  every  deposit  made  by  the  soldier;  and  after  each  regular  payment  he,  and  all 
officers  having  charge  of  detachments  of  enlisted  men  at  date  of  deposit,  will  trans- 
mit, direct  to  the  Paymaster-General,  a  list  of  names  of  depositors,  showing  in  each 
case  the  date,  place,  and  amount  of  deposit,  and  name  of  paymaster  receiving  the 
same.  These  lists,  before  transmittal.  will  be  examined  and  compared  with  the  rec- 
ord of  deposits  on  the  company  or  detachment  book  and  the  deposit  book  of  the 
soldier.  Should  a  soldier  who  has  made  a  deposit  be  transferred  or  desert,  the  fact 
will  be  promptly  reported  direct  to  the  Paymaster-  General  by  the  officer  in  command 
of  the  company  or  detachment  to  which  he  belonged.  In  case  of  transfer  his  de 
scriptive  list  will  be  made  to  exhibit  the  date  and  amount  of  each  deposit.  (Par. 
1371,  A.  R.,  1895.) 

On  the  discharge  of  a  soldier  the  date  and  amount,  in  words  and  figures  of  each 
of  his  deposits  will  be  entered  upon  his  final  statements,  and  his  deposit  book  will 
be  taken  up  by  the  paymaster  who  pays  him  and  filed  with  the  voucher  of  payment. 
In  case  deposits  are  forfeited  by  desertion,  the  amounts  of  the  same  will  be  entered 
on  the  final  statements  under  the  head  "Remarks,"  and  the  facts  and  authority  for 
such  forfeiture  given.  (Par.  1372,  ibid.) 

Before  delivering  final  statements  upon  which  deposits  are  credited,  the  officer 
signing  them  will  ascertain  whether  the  soldier  has  the  deposit  book;  and  if  so,  in- 
struct him  to  present  it  to  the  paymaster.  Should  he  claim  to  have  lost  it,  the  officer 
will  cause  his  affidavit  to  that  effect  to  be  taken  and  attached  to  the  statements. 
Ihe  affidavit  will  clearly  state  the  circumstances  attending  loss  of  the  book,  and 
sfcow  that  the  soldier  has  not  sold  or  assigned  it.  Upon  this  evidence  the  paymaster 
may  pay  and  the  responsibility  for  the  correctness  of  amounts  credited  on  the  state- 
ments will  rest  with  the  officer  certifying  them.  (Par.  1373.  ibid.) 

Paymasters  will  not  pay  deposits  except  on  final  statements.  When  they  are  not 
paid  the  soldier  should  forward  his  deposit  book  or  the  evidence  referred  to  in  the 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  239 

657.  The  amounts  of  deposits  and  clothing-balances  accu-  bl^^8jit8  pa-ya- 
mulating  to  the  soldier's  credit  under  sections  thirteen    May  is,  1372,  c. 
hundred  and  two  and  thirteen  hundred  and  five,  shall,  when  117'. 

Xf  "•    1  **  OS    R    X 

payable  to  him  upon  his  discharge,  be  paid  out  of  the 
appropriations  for  "pay  of  the  Army"  for  the  then  current 
fiscal  year. 

MISCELLANEOUS  PROVISIONS. 

658.  The  amount  due  from  any  officer  for  rations  pur-    Deductions  for 

*  rations     pur- 

chased  on  credit,  or  for  any  article  designated  by  the  in-  chased  by  om- 
spectors-general  of  the  Army  and  purchased  on  credit  from    Mar.  3,  ises,  c. 
commissaries  of  subsistence,  shall  be  deducted  from  the  497 ;  Juiy28,  iseei 
payment  made  to  such  officer  next  after  such  purchase  shall  p.sse' 8' 
have  been  reported  to  the  Paymaster-General. 

659.  The  amouu.t  due  from  any  enlisted  man  for  articles    For  articles 
designated  by.  the  inspectors-general  of  the  Army,  and  sold  BSedmen.  y  ei 

,.,    ,  „         ,      .    ,  '     ,      ,,    ,          July  28, 1866, c. 

to  him  on  credit  by  commissaries  01  subsistence,  shall  be  299, 3.25,  v.  14,  p. 
deducted  from  the  payment  made  to  him  next  after  such  s'ec.i30o,R.s. 
sale  shall  have  been  reported  to  the  Paymaster-General. 

660.  The  amount  due  from  any  enlisted  man  for  tobacco    For  tobacco 

purchased. 

sold  to  him  at  cost  prices  by  the  United  States  shall  be  Mar-  s,  ises.  c. 
deducted  from  his  pay  in  the  manner  provided  for  the  set-  8ec.'i8oi,pB.  s.' 
tlement  of  clothing  accounts.1 

661.  In  all  matters  relating  to  the  pay  and  allowances  of  tee^y  of  volun' 
officers  and  soldiers  of  the  Army  of  the  United  States,  the 15f™-2\18u' G' 
same  rules  and  regulations  shall  apply  to  the  Eegular  Army  43£     ^      '   ' 
and  to  volunteer  forces  mustered  into  the  service  of  the 

United  States  for  a  limited  period. 


preceding  paragraph  to  the  Paymaster-General.  Enlisted  men  should  be  informed 
of  the  importance  of  preserving  deposit  books  as  the  only  certain  means  of  insuring 
prompt  repayment.  (Par.  1374,  ibid.) 

On  the  death  of  a  soldier  each  deposit,  with  amount,  date,  place,  and  paymaster 
witb  whom  deposited,  will  be  noted  in  the  inventory  of  his  effects,  and  on  the  ac- 
companying final  statements  with  which  his  deposit  book  will  be  filed.  (Par.  1377, 
ibid.) 

Both  deposits  and  interest  will  be  forfeited  by  desertion,  but  are  exempt  from  for- 
feiture by  sentence  of  court-martial  and  from  liability  for  the  soldier's  debts.  (Par. 
1378,  ibid.) 

The  retained  pay  of  enlisted  men  will  be  treated  as  deposits  to  the  extent  that  it 
draws  interest  from  the  end  of  the  year  of  the  enlistment  in  which  retained.  It  is 
subject  to  forfeiture  for  any  of  the  causes  set  forth  in  paragraph  1369,  and  is  carried 
to  the  credit  of  the  soldier  on  his  final  statements,  subject  to  deduction  for  debts  due 
the  United  States  at  the  date  of  discharge.  (Par.  1379,  ibid.) 

The  act  of  August  0,  1894  (28  Stat.  L.,  236),  contains  the  proviso  "  that  hereafter 
sums  known  as  detained  pay,  which  have  already  been  or  may  hereafter  be  withheld 
from  the  monthly  pay  of  enlisted  men  of  the  Army  in  obedience  to  court-martial 
sentences,  shall  when  repaid  become  a  charge  against  the  fund  '  pay  of  the  Army  ' 
for  the  >  ear  in  which  said  enlisted  men  have  been  or  may  be  discharged." 

1  For  provisions  of  statutes  respecting  deductions  from  the  pay  of  enlisted  men  for 
the  money  value  of  clothing  not  drawn,  see  sections  1302  and  1308,  Revised  Statutes. 
For  pay  ($2  per  month)  to  enlisted  men  to  whom  certificates  of  merit  have  been 
awarded  under  section  1285,  Revised  Statutes,  see  the  chapter  entitled  BREVETS, 
MEDALS  OF  HONOK,  AND  CERTIFICATES  OF  MERIT.  For  provisions  relating  to  the 
reimbursement  of  the  United  States  for  damages  done  to  arms,  equipments,  etc.,  see 
paragraph  870  in  the  chapter  entitled  THE  ORDNANCE  DEPARTMENT. 


CH-AJPTER  XX. 


THE  MEDICAL  DEPARTMENT. 


Par. 

662.  The TVledical Department;  or- 

ganization. 

663.  Grades    of    certain    medical 

officers. 

664.  Examinations. 

665.  Volunteer  service  of  assist- 

ant surgeons. 

666.  Examination  of  assistant  sur- 

geons for  promotion. 

667.  Bank  and  precedence. 

668.  Right  of  command. 

669.  Assignment  to  duty. 


670.  Supervision  of  cooking. 

671 .  Purchases  for  sick  in  hospital. 

672.  Professional    attendance    on 

families  of  officers. 

673.  The  Hospital  Corps. 

674.  Hospital  stewards. 

675.  Rank  and  pay. 

676.  Examination. 

677.  Privates;  duties. 

678.  Pay  and  allowances. 

679.  Acting  hospital  stewards. 


662<  That  the  Medical  Department  of  the  Army1  shall 
liereafter  consist  of  one  Surgeon  General,  with  the  rank, 
1874,  y.  18,^244;  pay?  an(i  emoluments  of  a  brigadier  general ;  two  assistant 
24,  p.  435;  July  surgeon- generals,  with  the  rank,  pay,  and  emoluments  of 
ei ';  July  27, 1892,  colonels,  and  two  deputy  surgeon  generals,  with  the  rank, 

v.  27,  p.  276;  Aug.  ,  ,      ,,       . 

is,  1894,  v.  28,  p.  pay,  and  emoluments  of  lieutenant-colonels,2  who  shall  give 
the  same  bonds  which  are  or  may  be  required  of  assistant 
paymasters-general  of  like  grade,  and  shall,  when  not  act- 
ing as  purveyors,  be  assignable  to  duty  as  surgeons  by  the 
President  5  fifty  surgeons,  with  the  rank,  pay,  and  emolu- 
ments of  majors ;  one  hundred  and  ten  assistant  surgeons, 
with  the  rank,  pay,  and  emoluments  of  lieutenants  of 
cavalry3  for  the  first  five  years'  service,  and  with  the  rank, 
pay,  and  emoluments  of  captains  of  cavalry  after  five  years' 
of service;4  and  all  the  original  vacancies  in  the  grade  of 
geoS -ahow  lued!  assistant  surgeon  shall  be  filled  by  selection  by  competitive 
geSns  limited" r~  examination.  And  the  number  of  contract- surgeons  shall 
be  limited  to  seventy-five  on  or  before  the  first  day  of 

'  Section  1168,  Revised  Statutes,  was  replaced  by  section  4,  of  the  act  of  June  23. 
1874  (18  BtM.Ii.,  244),  reorganizing  the  staff' corps  of  the  Army.  For  general  provi- 
sions respecting  appointments  and  promotions  in  the  Medical  Department,  see  the 
chapter  entitled  THE  STAFF  DEPARTMENTS 

'The  act  of  July  27,  1892  (27  Stat.  L.,  276),  provided  that  the  grade  of  officers 
holding  the  rank  of  colonel  in  the  Medical  Department  should  be  that  of  assistant 
surgeon  general,  and  that  the  grade  of  officers  holding  the  rank  of  lieutenant  colonel 
should  be  that  of  deputy  surgeon  general. 

3  The  number  of  assistant  surgeons  was  fixed  at  125  by  the  act  of  July  26, 1876  (19 
Stat.  L.,  Gl),  and  at  110  by  the  act  of  August  18,  1894  (28  Stat.  L  ,  403). 

4  The  office  of  medical  storekeeper  was  abolished  by  the  act  of  July  26,  1876  (19 
Stat.  Li.,  61). 

240 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  241 

January  in  the  year  eighteen  hundred  and  seventy-five; 
and  thereafter  no  more  than  that  number  shall  be  employed.1 
Sec.  4,  act  of  June  23,  1874  (18  Stat.  L.,  244). 

663.  That  from  and  after  the  passage  of  this  act  the    Grades  of  cer- 
grade  of  certain  medical  officers  of  the  Army  below  that  ofcers.™ 
Surgeon-General  shall  be  as  follows:  Those  holding  the 2?fp. ire!1 18°2' v' 
rank  of  colonel,  assistant  surgeon -generals;  those  holding 

the  rank  of  lieutenant-colonel,  deputy  surgeon-generals. 

664.  No  person  shall  receive  the  appointment  of  assistant    Examinations. 

V       -U        u    ii  i  i  -11  i      June  30,1834,c. 

surgeon  unless  he  shall  have  been  examined  and  approved  133, 8.  i,  v.  4,  P. 
by  an  Army  medical  board,  consisting  of  not  less  than  three   sec.  1172,  B.  s. 
surgeons  or  assistant  surgeons,  designated  by  the  Secretary 
of  War;  and  no  person  shall  receive  the  appointment  of 
surgeon  unless  he  shall  have  served  at  least  five  years  as 
an  assistant  surgeon  in  the  Eegular  Army,  and  shall  have 
been  examined  and  approved  by  an  Army  medical  board, 
consisting  of  not  less  than  three  surgeons,  designated  as 
aforesaid.2 

665.  Assistant  surgeons  who  have  served  three  years  as .  voiunteerserv- 

J  ice    of  assistant 

surgeons  or  assistant  surgeons  in  the  volunteer  forces  [shall] 3  surgeons. 

be  eligible  to  promotion  to  the  grade  of  captain.  i|j>,  s.  5,V.  i4,V 

666.  That  before  receiving  the  rank  of  captain  of  cavalry,    Examination 

.    ,  ini  i  -,        ,-,  .    .          of  assistant  sur- 

assistant  surgeons  shall  be  examined,  under  the  provisions  rams  for  promo- 
of  an  act  approved  October  first,  eighteen  hundred  and    v.' 26,  p.  562. 
ninety,  entitled  "An  act  to  provide  for  the  examination  of  1892,%.  27,  p.  276.' 
certain  officers  of  the  Army  and  to  regulate  promotions 
therein."     Sec.  2,  act  of  July  27,  1892  (27  Stat.  L.,  276). 

667.  Officers  of  the  Medical  Department  shall  take  rank    Rank  and  Pre« 

,  .,  .  _  • ,  i      -I     .,  .  cedence. 

and  precedence  in  accordance  with  date  ot  commission  or    July  5, 1884,  v. 
appointment,  and  shall  be  so  borne  on  the  official  Army 
.Register.     Act  of  July  5,  1884  (23  Stat.  L.,  111). 

668.  Officers  of  the  Medical  Department  of  the  Army    Right  of  com- 
shall  not  be  entitled,  in  virtue  of  their  rank,  to  command  "Veb.  n,  1847,  c. 

.       ..  .  8,  s.8,  v.  9,  p.  125. 

m  the  line  or  in  other  staff  corps.  sec.  neo,  it.  s. 


669.  That  medical  officers  of  the  Army  may  be  assigned    Assignment  to 
by  the  Secretary  of  War  to  such  duties  as  the  interests  of  "sec.  3,  July  27, 

,  ,    .  1892,  v.  27,  p.  277. 

the  service  may  demand.4 


'Since  tho  act  of  July  16,  1892  (27  Stat.  L.,  175),  contract  surgeons,  as  such,  have 
not  been  provided  for  in  the  annual  appropriation  bills.  The  number  of  officers  of 
this  grade  was  fixed  at  75  by  the  act  of  June  23,  1874  (18  Stat.  L.,  244) ;  at  75  by  the 
acts  of  July  30,  1886  (24  Stat.  L.,  95),  and  February  9,  1887  (24  Stat.  L.,  396) ;  and  at 
50  by  the  acts  of  September  22,  1888  (25  Stat.  L.,  482),  and  March  2,  1889  (25  Stat.  L., 
827). 

2  No  allowance  will  be  made  for  tho  expenses  of  persons  undergoing  examination, 
but  those  who  receive  appointments  will  be  entitled  to  travel  allowances  in  obeying 
the  first  order  assigning  them  to  duty  (Par.  1395,  A.  R..  1895). 

:  The  word  "shall"  omitted  from  the  roll. 

4The  Medical  Department,  under  the  direction  of  the  Secretary  of  War,  is  charged 
with  the  duty  of  investigating  the  sanitary  condition  of  the  Army  and  making 
recommendations  in  reference  thereto,  with  the  duty  of  caring  for  the  sick  ana 
wounded,  making  physical  examinations  of  officers  ami  enlisted  men,  and  furnishing 
all  medical  and  hospital  supplies,  except  for  public  animals.  (Par.  1392,  A.  R.,  1895). 

1919 16 


242  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


cook?nrvisi°n  °f     ®^§  ^ne  °fficers  °f  the  Medical  Department  of  the  Army 

^  Mar.  3,  1863,  c.  shall  unite  with  the  officers  of  the  line,  under  such  rules  and 

744.8'   '  J^  R  ^'  regulations  as  shall  be  prescribed  by  the  Secretary  of  War, 

"in  superintending  the  cooking  done  by  the  enlisted  men; 

and  the  Surgeon-General  shall  promulgate  to  the  officers  of 

said  corps  such  regulations  and  instructions  as  may  tend  to 

insure  the  proper  preparation  of  the  ration  of  the  soldier. 

Purchases  for     671.  Such  quantities  of  fresh  or  preserved  fruits,  milk. 

sick  in  hospital.  ' 


. 

Aug.  3,  1861,  c.  butter,  and  eggs  as  may  be  necessary  tor  the  proper  diet  ot 
289.8'  P  the  sick,  may  be  allowed  in  hospitals.     They  shall  be  pro- 

*  vided  under  such  rules  as  the  Surgeon-General,  with  the 
approval  of  the  Secretary  of  War,  shall  prescribe. 
sion^     672.  The  medical  officers  of  the  Army  and  contract  sur- 
of  offi-  geons  shall  whenever  practicable  attend  the  families  of  the 


July  5,  1884,  v.  officers  and  soldiers  free  of  charge.1     Act  of  July  5,  1884 
(23  Stat.  L.,  112). 

THE   HOSPITAL   CORPS. 

The   Hospital     673.  That  the  Hospital  Corps  of  the  United  States  Army 

Mar!  i,  1887,  v  shall  consist  of  hospital  stewards,  acting  hospital  stewards, 

ie!  1895,  V.  29  ap.  and  privates;  and  all  necessary  hospital  services  in  garri- 

son, camp,  or  field  (including  ambulance  service)  shall  be 

performed  by  the  members  thereof,  who  shall  be  regularly 

enlisted  in  the  military  service;  said  Corps  shall  be  perma- 

nently attached  to  the  Medical  Department,  and  shall  not  be 

included  in  the  effective  strength  of  the  Army  nor  counted 

as  a  part  of  the  enlisted  force  provided  by  law.2    Act  of 

March  1,  1887  (24  Stat.  L.,  435). 

1  Civilians  employed  in  post  exchanges  are  held  to  be  entitled  to  the  privileges  of 
medical  and  hospital  attendance  and  purchase  of  medicines  allowed  civilian  employees 
under  Army  Regulations  1444,  1445,  1447,  and  1450.     (Decision  Sec.  War,  Jan.  31,  1896— 
Circular  No.  2,  1896.) 

2  Sections  1179,  1180,  and  1181,  Revised  Statutes,  were  repealed  by  the  act  of  March 
1,  1887  (24  Stat,  L.,  435),  creating  the  Hospital  Corps. 

THE  HOSPITAL  CORPS. 

All  hospital  services  in  garrison  and  in  the  field  will  be  performed  by  members  of 
the  Hospital  Corps,  who  will  be  enlisted  for,  and  permanently  attached  to,  the  Med- 
ical Department.  In  time  of  war,  the  corps  will  perform  the  necessary  ambuJance 
service  under  such  officers  of  the  Medical  Department  and  assistants  as  may  be 
detailed  for  that  duty.  (Par.  1396,  A.  R.,  1895.) 

No  person  will  be  appointed  a  hospital  steward  until  he  has  served  a  year  as  act- 
ing hospital  steward;  nor  will  a  steward  be  appointed  nor  an  acting  steward  bo 
detailed  until  he  has  passed  a  satisfactory  examination,  under  the  direction  of 
the  Surgeon-  General.  Privates  who  have  served  one  year  in  the  Hospital  Corps, 
and  graduates  of  pharmacy  who  have  served  six  months  and  have  shown  particular 
fitness,  may  be  recommended  to  the  Surgeon-General  for  promotion  by  the  senior 
medical  officer  of  the  command.  From  those  thus  recommended  acting  stewards 
will  be  detailed,  after  passing  the  required  examination.  These  examinations  will 
be  conducted  by  a  board  composed  of  the  medical  officers  of  the  station  at  which  the 
applicant  may  be  serving,  and  if  no  medical  officer  is  there  on  duty,  the  candidate 
will  be  sent  for  examination  to  the  nearest  station  provided  with  such  an  officer. 
The  report  of  the  board  will  be  forwarded  direct  to  the  Surgeon-General  (Par. 
1397,  ibid.) 

A  hospital  steward  may  be  reenlisted  at  the  expiration  of  his  term  of  service  on 
the  authority  of  the  Surgeon-General,  provided  ho  has  passed  successfully  the  pre- 
scribed examination.  If  he  desire  to  reenlist  he  will  report  the  fact,  in  writing, 
through  military  channels,  to  the  Surgeon-General  sixty  days  before  the  expiration 
of  his  term  of  service.  (Par.  1398,  ibid.) 

At  every  post  there  will  be  one  hospital  steward,  two  if  the  garrison  equals  six 
companies,  and  an  additional  one  for  every  additional  pix  companies.  At  every 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  243 

674.  That  the  Secretary  of  War  is  empowered  to  appoint  arHaospital  8tew- 
as  many  hospital  stewards  as,  in  his  judgment,  the  service    Sec-  2>  Mar.  i, 
may  require;  but  not  more  than  one  hospital  steward  shall  Mar.  IG,  isoo,  v! 
be  stationed  at  any  post  or  place  without  special  authority 

of  the  Secretary  of  War.  That  there  shall  be  no  appoint- 
ments of  hospital  stewards  until  the  number  of  hospital 
stewards  shall  be  reduced  below  one  hundred,  and  there- 
after the  number  of  such  officers  shall  not  exceed  one 
hundred.  Act  of  March  16,  1896  (29  Stat.  L.,  61). 

675.  That  the  pay  of  hospital  stewards  shall  be  forty-    Rank  and  pay. 

a          j    II  -J  t^i     Sec-  3-  Mar.  1, 

five  dollars  per  month,  with  the  increase  on  account  of  ISST,  v.  24, p.  435. 
length  of  service  as  is  now  or  may  hereafter  be  allowed  by     . 
law  to  other  enlisted  men.     They  shall  have  rank  with 
ordnance- sergeants  and  be  entitled  to  all  the  allowances 
appertaining  to  that  grade.     Sec  5,  act  of  March  1, 1887  (24 
Stat.  L.,  435). 

676.  That  no  person  shall  be  appointed  a  hospital  stew-    Examination. 
ard  unless  he  shall  have  passed  a  satisfactory  examination  issj.v.  24,  p.  435'. 
before  a  board  of  one  or  more  medical  officers  as  to  his 
qualifications  for  the  position,  and  demonstrated  his  fitness 

therefor  by  service  of  not  less  than  twelve  months  as  act- 
ing hospital  steward;  and  no  person  shall  be  designated 
for  such  examination  except  by  written  authority  of  the 
Surgeon-General.  Sec.  4,  ibid. 

677.  That  the  Secretary  of  War  is  empowered  to  enlist,  tie^rivates;  du~ 
or  cause  to  be  enlisted,  as  many  privates  of  the  Hospital    sec.5,tWd.- 
Corps  as  the  service  may  require,  and  to  limit  or  fix  the 
number,  and  make  such  regulations  for  their  government 

post  of  two  companies  there  will  also  be  an  acting  steward,  if  practicable.  (Par. 
1409,  ibid.) 

There  will  be  three  privates  of  the  Hospital  Corps  at  every  military  post,  four  if 
the  garrison  consists  of  two  companies,  and  an  additional  private  for  each  additional 
two  companies.  They  will  be  assigned  to  the  respective  duties  connected  with  the 
hospital  service  by  the  surgeon  of  the  post.  (Par.  1410,  ibid.) 

The  number  of  stewards  and  privates  of  the  Hospital  Corps  to  be  stationed  at 
arsenals,  engineer  stations,  and  independent  posts  will  be  determined  by  the  Secre- 
tary of  War.  (Par.  1411,  ibid.) 

COMPANY  BEARERS. 

There  will  be  in  each  company  four  privates  designated  for  instruction  as  litter 
bearers.  They  will  be  selected  by  company  commanders,  with  the  concurrence  of 
the  surgeon.  They  should  be  of  good  character  and  sufficient  intelligence  to  make 
them  eligible  for  transfer  to  the  corps,  and  will  be  known  as  "company  bearers." 
(Par.  1412,  A.  K.,  1895.) 

Company  bearers,  together  with  all  available  men  of  the  Hospital  Corps,  will  be 
instructed  under  the  supervision  of  the  surgeon  of  the  post  for  at  least  four  hours 
in  each  month,  and  at  such  times  as  the  post  commander  may  appoint,  in  the  duties 
of  litter  bearers  and  the  methods  of  rendering  first  aid  to  the  sick  and  wounded. 
This  special  instruction  will  not  relieve  them  from  the  performance  of  their  regular 
military  duties.  They  should  be  instructed  primarily,  and  by  object  lessons  as  far 
as  practicable,  in  first  aid.  During  an  engagement  or  in  an  emergency  the  company 
hearers  may  be  directed  by  their  immediate  commanding  officers  to  fall  out  aud  give 
first  aid  to  the  wounded,  or  carry  them  to  the  rear  until  relieved  by  members  of  the 
Hospital  Corps,  and  when  so  relieved  they  will  immediately  join  their  companies. 
Company  bearers  on  drill  as  such  and  in  campaigns  will  wear  a  red  brassard  around 
the  left  arm.  (Par.  1413,  ibid.) 

AMBULANCES  AND  UTTERS. 

One  regulation  ambulance  with  proper  harness  will  be  issued  to  each  post.  To 
posts  of  more  than  200  men,  the  number  to  be  issued  will  bo  one  additional  ambu- 
lance for  each  additional  200  men  or  major  fraction  thereof.  (Par.  1414,  A.  K.,  1895.) 

The  ambulance  will  not  be  used  except  for  transportation  of  the  sick  and  wounded, 


244  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

as  may  be  necessary;  and  any  enlisted  man  in  the  Army 
shall  be  eligible  for  transfer  to  the  Hospital  Corps  as  a 
private.  They  shall  perform  duty  as  war  dm  aster  s,  cooks, 
nurses,  and  attend  ants  in  hospitals,  and  as  stretcher-bearers, 
litter-bearers,  and  ambulance  attendants  in  the  field,  and 
such  other  duties  as  may  by  proper  authority  be  required 
of  them.  Sec.  5,  ibid. 

ray  and  allow-     678.  That  the  pay  of  privates  of  the  Hospital  Corps  shall 

sec.'  c,  iud^;  be  eighteen  dollars  per  month,  with  the  increase  on  account 

2?! p.  126.   *    A'  of  length  of  service  as  is  now  or  may  hereafter  be  allowed 

by  law  to  other  enlisted  men;  they  shall  be  entitled  to  the 

same  allowances  as  a  corporal  of  the  arm  of  service  with 

which  on  duty.     Sec.  6,  ibid. 

Acting  hospi-     679.  That  privates  of  the  Hospital  Corps  may  be  detailed 

tal  stewards. 

sec.  ?,  Mar.  i,  as  acting  hospital  stewards  by  the  Secretary  of  War,  upon 

1887   v  24  p  436. 

the  recommendation  of  the  Surgeon-General,  whenever  the 
necessities  of  the  service  require  it;  and  while  so  detailed 
their  pay  shall  be  twenty-five  dollars  per  month,  with  in- 
crease as  above  stated.  Acting  hospital  stewards,  when 

the  recreation  of  convalescent  patients,  or  to  give  instruction  in  the  duties  of  the 
ambulance  service.  They  will  be  furnished  and  repaired  by  the  Quartermaster's 
Department,  will  always  be  subject  to  the  call  of  the  surgeon,  and,  when  practi- 
cable, will  be  housed  near  the  hospital.  (Par.  1415.  ibid.) 

At  each  post  one  of  the  privates  of  the  corps  will  be  designated  by  the  surgeon  as 
ambulance  driver.  In  addition  to  his  other  duties,  he  will  care  for  the  ambulance, 
its  equipment  and  harness,  and  see  that  they  are  always  in  readiness  for  immediate 
use.  In  the  field  he  will  care  for  the  animals.  When  it  is  necessary  to  use  the 
ambulance  for  any  transportation  purposes,  the  commanding  officer,  on  the  applica- 
tion of  the  surgeon,  will  see  that  the  requisite  animals  are  provided  by  the  quarter- 
master and  placed  at  the  disposal  of  the  surgeon.  (Par.  1416,  ibid.) 

At  posts  each  company  Avill  be  furnished  with  one  hand  litter,  which  will  be  kept 
ready  at  all  times  for  use  by  the  company  bearers.  They  will  be  supplied  and  repaired 
by  the  Quartermaster's  Department.  (Par.  1417,  ibid.) 

Travois  and  mule  litters  may  be  issued  upon  the  recommendation  of  the  chief 
surgeon.  (Par.  1418,  ibid.) 

Commanding  officers  will  inspect  ambulances,  litters,  and  other  appliances  for 
transporting  the  wounded  at  each  monthly  inspection,  and  see  that  they  are  com- 
pletely equipped.  When  practicable,  the  ambulance  fully  equipped  for  service  will 
be  presented  for  inspection,  with  the  animals  attached.  (Par.  1419,  ibid.) 

FIELD  SERVICE. 

In  field  service,  troops  will  be  accompanied  by  such  number  of  men  of  the  Hospital 
Corps  as  may  be  determined  by  the  post  commander,  on  the  recommendation  of  the 
surgeon.  (Par.  1420,  A.  K.,  1895.) 

On  the  march  or  in  battle  each  medical  officer  will  habitually  be  attended  by  a 
mounted  private  of  the  Hospital  Corps.  Hospital'  stewards,  acting  stewards,  and 
at  least  one  private  of  the  corps  in  each  separate  command  will  be  mounted  when 
serving  in  the  field,  and  all  privates  of  the  corps  will  be  mounted  when  serving  with 
mounted  commands.  Horses  will  be  famished  by  the  Quartermaster's  Department 
for  members  of  the  corps  on  duty  in  the  field,  when  practicable.  When  no  horses 
are  available  special  application  for  authority  to  hire  must  be  made.  (Par.  1421, 
ibid.) 

Ambulances  will  be  tised  for  the  transportation  of  the  sick  and  wounded,  the 
instruction  of  the  Hospital  Corps  and  company  bearers,  and,  in  urgent  cases,  for 
the  transportation  of  medical  supplies,  and  all  persons  are  prohibited  from  using 
them,  or  requiring  or  permit! ing  them  to  be  used,  for  any  other  purpose.  It  shall 
be  the  duty  of  the  officers  of  the  ambulance  service  to  report  to  the  commander  of 
the  troops  any  violation  of  the  provisions  of  this  paragraph.  (Par.  1422,  ibid.) 

No  person,  except  the  proper  medical  officers  or  the  officers,  noncommissioned  offi- 
cers, and  privates  of  the  ambulance  service,  or  such  persons  as  may  be  specially 
assigned  by  competent  military  authority  to  duty  therewith,  will  be  permitted  to 
take  or  accompany  sick  or  wounded  men  to  the  rear,  either  on  the  march  or  upon  the 
field  of  battle.  (Par.  1423,  ibid.) 

When  detailed  for  service  in  the  field  during  Indian  wars,  or  when  left  with  the 
sick  or  wounded  under  circumstances  which  justify  the  expectation  that  their  rights 
as  noncombatants,  under  the  Geneva  Convention,  will  not  be  recognized,  command- 
ing officers  will  issue  to  members  of  tho  Hospital  Corps  revolvers  or  other  available 
firearms.  With  these  exceptions,  no  side  arms  will  be  issued  to  members  of  the 
Hospital  Corps,  (Order  Sec,  War,  Jan.  31, 1896— Circular  ]STo.2, 1896.) 


THE   MILITARY    LAWS   OF   THE    UNITED    STATES.  245 

educated  in  the  duties  of  the  position,  may  be  eligible  for 
examination  for  appointment  as  hospital  stewards  as  above 
provided.  Sec.  7,  ibid. 


Par. 


ARTIFICIAL  LIMBS. 


Par. 


680.  Artificial  limbs.  688.  Trusses. 

681.  To  be  renewed  once  in  three  j  689.  Application  for;  how  made. 

years.  690.  Trusses  to  be  purchased  by 

682.  Commutation.  Surgeon-General. 

683.  Commutation     payable     by  !  691.  Hospital  matrons  and  female 

Commissioner  of  Pensions.  !  nurses. 

684.  Commutation  to  those  who    692.  Quarters  for  hospital  stew- 


can  not  use  artificial  limbs. 
685.  Commutation  to  be  paid  di- 


ards. 
693.  Civilian  employees  may  pur- 


rectly  to  soldier,  etc.  chase  medicines. 

686.  Transportation  to  persons  for  |  694.  Purchases  without  advertise- 

whom  artificial  limbs   are  j  ment. 

furnished. 

687.  Transportation    to    be    fur- 

nished by   Quartermaster- 
General. 

680.  That  every  officer,  soldier,  seaman  and  marine,  who, 

in  the  line  of  duty,  in  the  militarv  or  naval  service  of  the19-  P-  gs  Aug.  15, 

1876,  s.  1,  v.  19,  p. 

United  States,  shall  have  lost  a  limb,  or  sustained  bodily  203 ;  Mar.y,  isoi, 
injuries,  depriving'  him  of  the  use  of  any  of  his  limbs,  shall Y 
receive  once  every  three  years  an  artificial  limb  or  appliance, 
or  commutation  therefor,  as  provided  and  limited  by  exist- 
ing laws,  under  such  regulations  as  the  Surgeon-General 
of  the  Army  may  prescribe  j  and  the  period  of  [live]  three 
years  shall  be  held  to  commence  with  the  filing  of  the  first 
application  after  the  seventeenth  day  of  June,  in  the  year 
eighteen  hundred  and  seventy.     Sec.  1,  act  of  August  15, 

1876   (19    Stat.    L.,    203).        The       *      *      *        SUmS       *       *       *  .    Appropriation 
x  .  '  '  to    be  disbursed 

hereby  appropriated  shall  be  expended  and  disbursed  under  bv  Surgwm-Gjai. 
the  direction  of  the  Surgeon-General  of  the  Army,  and  in 
accordance  with  existing  laws.     Act  of  March  23,  1876  (19 
Stat.  L.,  8). 

681.  Every  officer,  soldier,  seaman,  and  marine  who  was    TO  be  renewed 

,.,,,,..,  .  i-i,.          once  in    three 

disabled  during  the  war  for  the  suppression  of  the  rebellion,  years. 

.,.,  .  j   •      xi       v  f    T     i  July  2,  1868,  v. 

in  the  military  or  naval  service,  and  in  the  line  of  duty,  or  15,  s.  u,  p.  237 ,- 
in  consequence  of  wounds  received  or  disease  contracted fe""! ^  p890i53,' 
therein,  and  who  was  furnished  by  the  War  Department 
since  the  seventeenth  day  of  June,  eighteen  hundred  andf?1 
seventy,  with  an  artificial  limb  or  apparatus  for  resection,  f 
who  was  entitled  to  receive  such  limb  or  apparatus  sincen 
said  date,  shall  be  entitled  to  receive  a  new  limb  or 
apparatus  at  the  expiration  of  every  three  years  thereafter, 
under  such  regulations  as  have  been  or  may  be  prescribed 


246  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

by  the  Surgeon-General  of  the  Army.1    Act  of  March  .9,  1891 
(26  Stat.  L.j  1103}. 

commutation     682.  Every  person  entitled  to  the  benefits  of  the  preced- 
rates  mb,  .^  section  may,  if  he  so  elects,  receive,  instead  of  such 

e/mfs.1!,1  v.8i6;  limb  or  apparatus,  the  money  value  thereof,  at  the  folio  w- 
i876?3c.  3oo,gv.i9,ing  rates,  namely:  For  artificial  legs,  seventy-five  dollars; 
P  lee.'  4788,  R.s.  f°r  arms,  fifty  dollars;  for  feet,  fifty  dollars;  for  apparatus 

for  resection,  fifty  dollars. 

commutation     683.  Every  person  in  the  military  or  naval  service  who 

not  use  artificial  lost  a  limb  during  the  war  of  the  rebellion,  or  is  entitled  to 

hjfc<z.,  8.3.        the  benefits  of   section  forty-seven  hundred  and  eighty- 

cQ^i'g!]).^7'  c'  seven,  but  from  the  nature  of  his  injury  is  not  able  to  use 

sec.  4790,  R.s.  an  artificial  nm     sliall  ^  eil  titled  to  the  benefits  of  section 


forty-seven  hundred  and  eighty-eight,  and  shall  receive 
money  commutation  as  therein  provided. 

684.  Hereafter  in  case  of  commutation  the  money  shall 
etctiyNo  8feeietro  ^e  Paid  directly  to  the  soldier,  sailor,  or  marine,  and  no  fee 
agMar  3  1891  v  or  compensation  shall  be  allowed  or  paid  to  any  agent  or 
26,pa979.'  v'  attorney.2  Act  of  March  3,  1891  (26  Stat  L.,  979). 
fo^pTr^s'to  685-  The  Secretary  of  War  is  authorized  and  directed  to 
Hmbs  ar^fur1  ^urn^s^  ^°  *ne  Persons  embraced  by  the  provisions  of  sec- 
nished.  tion  forty-seven  hundred  and  eighty-seven,  transportation 

305,Uvf  i4,'p86342|  to  and  from  their  homes  and  the  place  where  they  may  be 
'  required  to  go  to  obtain  artificial  limbs  provided  for  them 
.  uuder  authority  of  law. 

27,  1877,  c/69,  v.'  19,  p.  252.     Sec.  4791,  R.  S. 

fu^nu^e^iT     ®^'  ^ne  ^'ransP°r^a^on  allowed    for   having  artificial 

Quartermaster-  Hmbs    fitted    shall  be  furnished  by  the  Quartermaster- 

sec^,  Aug.  is,  General  of  the  Army,  the  cost  of  which  shall  be  refunded 

Fe7b'  2719i8772°v;  from  the  appropriations  for  the  purchase  of  artificial  limbs. 

19,  p.  252  ;  Mar.  3^  1891,  v.  26,  p.  1103. 

toTbrsSrn£hed     687>  Tnat  necessary  transportation    to    have    artificial 

^  ^uartermas-  Hmbs  fitted  shall  be   furnished    by  the    Quartermaster- 

sec.  2,  Aug.  15,  General  of  the  Arm  v,  the  cost  of  which  shall  be  refunded 

1876,  v.  19,  p.  204.  „  .     ,      ,   „        ,.  ,  '  ...     .    , 

1874,  ch.  298,  is  out  of  any  money  appropriated  for  the  purchase  of  artificial 

tee,  «m,  B.S.  limbs:  Provided,  That  this  act  shall  not  be  subject  to  the 

provisions  of  an  act  entitled  uan  act  to  increase  pensions,'7 

approved  June  eighteenth,  eighteen  hundred  and  seventy- 

four.     Sec.  2,  act  of  August  15,  1876  (19  Stat  L.,  204). 

TRUSSES. 

dJr^and^anorl"     **88'  That  everv  soldier  of  the  Union  Army,  or  petty- 

Mar.  3,  1879,  v!  officer,  seaman,  or  marine  in  the  naval  service,  who  was 

2°sec.3ii76,  R.S.  ruptured  while  in  the  line  of  duty  during  the  late  war  lor 

1  The  clause  added  to  section  4787  by  the  act  of  February  27,  1877,  was  repealed  by 
tbe  act  of  March  3,  1891. 

2  1.  The  requirement  of  section  4789,  Revised  Statutes,  that  the  Commissionerof 
Pensions  shall  be  furnished  by  the  Surgeon-General  with  lists  of  beneficiaries  with  a 
view  to  their  payment,  was  superseded  by  the  act  of  August  15,  1876  (19  Stat.  L.,  244), 
requiring  payments  on  account  of  artificial  limbs,  etc.,  to  be  made  by  the  latter 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      247 

the  suppression  of  the  rebellion,  or  who  shall  be  so  rup- 
tured thereafter  in  any  war,  shall  be  entitled  to  receive  a 
single  or  double  truss  of  such  style  as  may  be  designated 
by  the  Surgeon-General  of  the  United  States  Army  as  best 
suited  for  such  disability;  and  whenever  the  said  truss  or 
trusses  so  furnished  shall  become  useless  from  wear,  de- 
struction, or  loss,  such  soldier,  petty-officer,  seaman,  or 
marine  shall  be  supplied  with  another  truss  on  making  a 
like  application  as  provided  for  in  section  two  of  the  orig- 
inal act  of  which  this  is  an  amendment:  Provided,  That  Proviso. 
such  application  shall  not  be  made  more  than  once  in  two 
years  and  six  months:  And  provided  further,  That  sections 
two  and  three  of  the  said  act  of  May  twenty-eighth,  eight- 
een hundred  and  seventy-two,  shall  be  construed  so  as  to 
apply  to  petty-officers,  seamen,  and  marines  of  the  naval 
service,  as  well  as  to  soldiers  of  the  Army. 

689.  Application  for  such  truss  shall  be  made  by  the  .  Application 

for;  how  made. 

ruptured  soldier,  to  an  examining  surgeon  for  pensions,    May  28,  1372,  c. 
whose  duty  it  shall  be  to  examine  the  applicant,  and  when  164'. 

„          ,    ,      -J  _     Sec.  1177,  R.S. 

found  to  have  a  rupture  or  hernia,  to  prepare  and  forward 
to  the  Surgeon-General  an  application  for  such  truss  with- 
out charge  to  the  soldier. 

690.  The  Surgeon-General  is  authorized  and  directed  to    Trusses  to  be 
purchase  the  trusses  required  for  such  soldiers,  at  whole- 


sale  prices,  and  the  cost  of  the  same  shall  be  paid  upon    May  28,  1372,0. 

the  requisition  of  the  Surgeon-  General  out  of  any  moneys  164'.  8 

in  the  Treasury  not  otherwise  appropriated.  »ec.ii78,n.s. 


HOSPITALS. 


691.  Hospital  matrons  in  post  or  regimental  hospitals    Hospital  ma- 

.      .,  .  _    ,.  trons  and  female 

shall  receive  ten  dollars  a  month,  and  female  nurses  in  nurses. 

,,.,,,„  .  ,  Mar.  16, 1802,  v. 

general  hospitals  shall  receive  forty  cents  a  day.     One  2,  P.  134 ;  Aug.  s, 
ration  in  kind  or  by  commutation  shall  be  allowed  to  each.  jniyMM&.u! 

p.  416. 

692.  That  hereafter  the  posts  at  which  such  quarters,    Quarters  for 
[for  hospital  stewards],  shall  be  constructed  shall  be  desig-  a3.a  d 
nated  by  the  Secretary  of  War,  and  such  quarters  shall  be  27^84.' 1893' v' 
built  by  contract,  after  legal  advertisement,  whenever  the 

same  is  practicable.     Act  of  February  27,  1893  (27  Stat  L., 
484). 

1  HOSPITAL  BUILDINGS. 

A  building  will  not  be  erected  for  nor  occupied  as  a  hospital  until  the  opinion  of  a 
medical  officer  has  been  obtained  in  writing  upon  the  suitableness  of  site  and  pro- 
posed arrangement.  If  the  commanding  officer  dissent  from  this  opinion  he  will 
return  it  to  the  surgeon  of  the  post  with  his  reasons  indorsed  thereon.  (Par.  1424, 
A.  -It.,  1895.) 

Hospitals  will  be  erected  at  permanent  posts  in  accordance  with  plans  and  speci- 
fications famished  by  the  Surgeon-General,  approved  by  the  Secretary  of  War. 
(Par.  1425,  ibid.) 
v    When  altei-ations  of  or  additions  to  hospitals  are  necessary,  the  surgeon  of  the 


248  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

SALES   TO   CIVILIAN   EMPLOYEES. 

civilian  em-  693.  That  civilian  employees  of  the  Army  stationed  at 
!  military  posts  may,  under  regulations  to  be  made  by  the 
'  Secretary  of  War,  purchase  necessary  medical  supplies, 

post,  after  obtaining  from  the  quartermaster  an  estimate  of  cost,  will  transmit  plans 
and  specifications,  with  proposed  modifications,  through  military  channels,  to  the 
Secretary  of  War.  Similar  action  will  be  taken  upon  quarters  for  hospital  stewards. 
(Par.  1426,  ibid.) 

No  portion  of  any  hospital  building  will  be  used  or  occupied  as  quarters,  nor  will 
any  mess  be  permitted  or  maintained  therein  except  such  as  may  be  necessary  for 
patients  and  enlisted  men  there  on  duty.  (Par.  J430,  ibid.) 

SICK  CALL. 

At  siclt  call  the  enlisted  men  of  each  company  who  require  medical  attention  will 
be  conducted  to  the  hospital  by  a  noncommissioned  officer,  who  will  give  to  the 
attending  surgeon  the  Company  Sick  Report  Book  containing  the  names  of  the  sick.  • 
The  surgeon,  after  examination,  will  indicate  in  the  book,  opposite  their  names, 
the  men  who  are  to  bo  admitted  to  hospital  and  those  to  be  returned  to  quarters, 
what  duties  the  latter  can  perform,  witli  any  other  information  in  regard  to  the 
sick  which  he  may  have  to  communicate  to  the  company  commander.  (Par.  1431, 
A.  R.,  1895.) 

Medical  officers  will  furnish  company  commanders  any  information,  except  the 
diagnosis,  which  will  assist  them  in  determining,  for  entry  on  the  muster  rolls, 
whether  or  not  the  disability  of  a  soldier  who  is  or  has  been  on  sick  report  origi- 
nated in  the  line  of  dutv,  entering  this  information  in  the  Company  Sick  Report 
Book.  When  required  they  will  furnish  the  diagnosis  to  the  commanding  officer. 
(Par.  1432,  ibid.) 

GENERAL  HOSPITALS. 

General  hospitals  will  be  under  the  exclusive  control  of  the  Surgeon- General  and 
will  be  governed  by  such  regulations  as  the  Secretary  of  War  may  proscribe  The 
surgeon  in  charge  will  command  the  same  and  will  not  be  subject  to  the  orders  of 
local  commanders  other  than  those  of  territorial  departments.  ( Par.  1433,  A.  R.,  1895.) 

Hospital  transports,  boats,  and  railway  trains,  after  being  properly  assigned  as 
such,  will  be  exclusively  under  the  control  of  the  Medical  Department,  and  will  not 
be  diverted  from  their  special  purposes  by  orders  of  local  or  department  commanders 
or  officers  of  other  start'  corps.  (Par.  1434,  ibid.) 

SERVICE  OF  HOSPITALS. 

The  senior  surgeon  is  charged  with  the  management  and  is  responsible  for  the 
condition  of  the  post  hospital,  which  will  be  at  all  times  subject  to  inspection  by  the 
commanding  officer.  The  surgeon  of  the  post  will  inspect  the  hospital  every  morn- 
ing, and  on  Saturday  will  also  inspect  the  detachment  of  the  Hospital  Corps.  (Par. 
1435,  A.  R.,1895.) 

The  surgeon  of  the  post  will  assign  his  assistants  and  the  members  of  the  Hospital 
Corps  to  duty,  and  report  them  on  the  muster  rolls  in  the  capacity  in  which  they  are 
serving.  With  the  approval  of  the  commanding  officer,  he  will  also  appoint  the 
matrons.  (Par.  1436,  ibid.) 

Hospital  matrons  will  be  allowed  as  follows :  At  general  hospitals,  one  matron  to 
twenty  patients  or  major  fraction  thereof;  at  hospitals  at  posts  and  arsenals,  a  number 
fixed  by  the  Surgeon-General.  (Par.  1437,  ibid.) 

Patients  will,  if  possible,  leave  their  arms  and  accouterments  with  their  compa- 
nies. In  no  event  shall  ammunition  be  taken  into  the  hospital.  (Par.  1438,  ibid.) 

When  a  soldier  in  hospital  is  detached  from  hi*  company,  his  company  commander 
will  send  to  the  hospital  his  descriptive  list.  The  surgeon  in  charge  will  enter 
thereon  all  payments,  stoppages,  and  the  money  value  of  all  clothing  issued,  and 
when  the  soldier  leaves  the  hospital  will  return  the  list  to  the  compnny  commander. 
If  the  soldier  is  discharged  from  the  service  while  in  hospital,  the  surgeon  will  fur- 
Dish  him  with  final  statements  and  notify  the  Adjutant-General  of  the  Army  and 
the  company  commander  of  the  date,  place,  and  cause  of  discharge.  If  the  soldier 
die  in  hospital,  the  surgeon  will  take  charge  of  his  effects  and  make  the  report? 
required  in  paragraph  158.  (Par.  1439,  ibid.) 

Sick  or  wounded  soldiers,  discharged  while  in  the  hospital,  will  be  entitled  to  med- 
ical treatment  in  hospital,  and  to  the  usual  ration  during  disability,  or  for  the  period 
considered  proper  for  them  to  remain  under  treatment,  but  a  discharged  soldier  who 
has  left  the  hospital  will  not  be  readmitted  except  upon  the  written  order  of  the  com- 
manding officer.  (Par.  1440,  ibid.) 

Tents,  clothing,  hospital  furniture,  and  other  stores  used  in  the  treatment  of  con- 
tagious diseases,  will  be  disinfected  or  burned  under  the  supervision  of  a  medical 
officer.  (Par.  1441,  ibid.) 

The  Secretary  of  War  may,  on  the  recommendation  of  tho  Surgeon-General,  order 
gratuitous  issuea  of  clothing  to  soldiers  who  have  had  contagious  diseases,  and  to 
hospital  attendants  who  have  nursed  them,  to  replace  articles  destroyed  by  order  of 
the  proper  medical  officer  to  prevent  contagion.  (Par.  1442,  ibid.) 

Medical  officers  In  charge  of  hospital  propertv  will  not  permit  it  to  be  used  for 
other  than  hospital  purposes.  (Par.  1443,  ibid.)  " 

Under  the  act  of  March  2,  1889  (25  Stat.  L  ,  831),  the  annual  appropriations  for  the 
"Construction  and  repair  of  hospitals"  are  available  for  expenditure  upon  the  Army 
and  Navy  Hospital  at  Hot  Springs,  Ark.  (3  Dig.  Compt.  DRC.,  33.) 

Where  Congress  has  made  a  specific  appropriation,  to  be  expended  under  the  direc 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  249 

prescribed  by  a  medical  officer  of  the  Ariny,  at  cost,  with 
ten  per  centum  added.1  Act  of  March  3,  1883  (22  Stat  L., 
459). 

PURCHASES   OF   MEDICAL   SUPPLIES. 

694.  That  hereafter  so  much  of  section  thirty-seven  hun-    Purchases 

j  i  T-»       •       T    fM  without     adver- 

dred   and   nine.  Kevised  Statutes,  as  requires  advertise-  tisement. 

,    ,      _  .      ._  _•  .     Feb.  27, 1893,  v. 

ment  before  purchase  shall  not  apply  to  the  purchase  ot  27,  p.  485. 
medicines  and  medical  supplies.2    Act  of  February  27, 1893 
(27  Stat.  L.j  485). 

tion  of  the  Secretary  of  War,  for  "the  erection  of  the  necessary  and  suitable  build" 
ings  "  at  a  military  post,  the  appropriation  is  available  for  the  erection  of  a  suitable 
hospital  building  if,  in  the  judgment  of  the  Secretary  of  War,  such  a  building  is 
necessary  at  that  post.  Where  Congress  has  made  provision  for  the  construction  of 
buildings  at  and  the  enlargement  of  such  buildings  as,  "in  the  judgment  of  the  Sec- 
retary of  War,  may  be  necessary,"  the  appropriation  for  that  purpose  may  be  used, 
at  the  discretion  of  the  Secretary  of  War,  in  continuing  building  operations  at  the 
particular  military  post  not  specially  provided  for.  (3  Ibid.  217.) 

•Civilian  employees  at  military  posts  may  purchase  the  medical  supplies  pre- 
scribed for  them  by  a  medical  officer,  at  cost  price,  with  10  per  cent  added.  Medical 
officers  who  dispense  medical  supplies  to  civilian  employees  will  render  direct  to 
the  Surgeon-General,  on  the  first  day  of  every  month,  detailed  accounts  in  duplicate, 
giving  the  name  of  each  employee,  the  kind  and  quantity  of  medical  supplies  fur- 
nished him,  and  by  whom  prescribed,  during  the  preceding  month,  leaving  a  space 
between  items  for  the  insertion  of  the  price,  which  will  be  fixed  at  the  Surgeon- 
General's  Office.  One  copy  will  be  returned  to  the  officer  furnishing  the  supplies, 
and  the  amounts  inserted  will  be  collected  by  the  officer  accountable  for  them,  and  be 
disposed  of  in  the  same  manner  as  proceeds  of  other  sales  of  medical  property.  At 
isolated  posts  where  issues  to  civilians  become  necessary  to  save  life  or  prevent  ex- 
treme suffering,  medical  officers  will  make  such  issues,  and  at  the  end  of  each  month 
report  the  circumstances  to  the  Surgeon-General.  Original  prescriptions  will  be  re- 
tained as  a  part  of  the  hospital  records,  and  will  be  subject  to  examination  at  all 
times  by  inspectors  and  post  commanders.  (Par.  1444,  A.  R.,  1895.) 

2 For  general  provisions  in  respect  to  the  procurement  of  supplies  see  the  chapter 
entitled  CONTRACTS  AND  PURCHASES.  For  special  authority  to  sell  unserviceable 
medical  and  hospital  stores  and  other  property,  except  liquors,  see  the  act  of  August 
G,  1894  (28  Stat  L.,  241). 

The  employment  of  civilians  iu  the  Medical  Department  is  regulated  by  the  annual 
acts  of  appropriation.  The  amount  available  for  that  purpose  was  fixed  in  the  act 
of  March  3,  1883,  at  $34,000;  in  those  of  July  5,  1884,  March  3,  1885,  June  30,  1886, 
and  February  9,  1887,  at  $36,000;  in  that  of  September  22,  1888,  at  $42,000;  in  those 
of  March  2,  1889,  June  13,  1890,  February  24,  1891,  and  July  16,  1892,  at  $45,000:  in 
those  of  February  27,  1893,  August  6,  1894,  February  12.  1895,  and  March  16, 1896,  at 
$40,000. 


XXI. 


THE  ENGINEER  DEPARTMENT. 


THE    CORPS   OF   ENGINEERS. 


Par. 

695.  The  Corps  of  Engineers;  or- 

ganization. 

696.  Disbursements. 

697.  Engineers;  limits  of  duty. 

698.  Examinations  for  promotion. 

699.  Promotion  of  lieutenants  after 

fourteen  years'  service. 

700.  Examination  of  engineer  or 

ordnance  officers  who  have 
served  during  the  rebellion. 

701.  Engineer  battalion. 

702.  Engineer  company. 

703.  Officers  of  battalion. 

704.  Duties  of  engineer  soldiers. 

705.  Chief  Engineer  to  determine 

form,  number,  etc.,  of  pon- 
toons, tools,  etc. 

706.  Details  for  signal  duty. 


Par. 

707.  Mileage  of  engineer  officers 

on  land-grant  roads,  etc. 

708.  Employment   of    civil    engi- 

neers. 

709.  Names  to  be  reported  to  Con- 

gress. 

710.  Draftsmen,  etc.,  in  office  of 

Chief  of  Engineers. 

711.  Chief  of  Engineers  may  use 

books  in  Library  of  Con- 
gress. 

712.  Secretary  of  War  to  furnish 

annual  estimates  for  river 
and  harbor  works  on  or 
before  October  1. 

713.  Annual    report   of   Chief   of 

Engineers. 


The  Corps  of 
Engineers. 

Jiily  28, 1806,  c. 
29'J,  s.  19,  v.  14,  p. 
335;  Mar.  3,  1869, 
c.  124,  s.  6,  v.  15, 
p.  318;  June  10, 
1872,  c.  426,  v.  17, 
p.  382. 

Sec.  1151,  R.S. 

Disbursements. 

July  5.  1838,  c. 

162.  s.  27,  v.  5,  p. 

260;  July?,  1838, 

c.  194.  v.  '5,  p.  308. 

Sec.  1153,  B.S. 


695.  The  Corps  of  Engineers  shall  consist  of  one  Chief  of 
Engineers,  with  the  rank  of  brigadier-general,  six  colonels, 
twelve  lieutenant-colonels,  twenty-four  majors,  thirty  cap- 
tains, twenty-six  first  lieutenants,  and  ten  second  lieuten- 
ants, and  the  battalion.1 

696.  It  shall  be  the  duty  of  the  engineer  superintending 
the  construction  of  a  fortification,  or  engaged   about  the 
execution  of  any  other  public  work,  to  disburse  the  moneys 
applicable  to  the  same;   but  no  compensation  shall  be 
allowed  him  for  such  disbursement.2 

1  Tho  act  of  June  10, 1872,  prohibiting  promotions  above  the  grade  of  Colonel  in  the 
Engineer  Corps  was  repealed  by  the  act  of  June  30, 1879  (21  Stat,  L.,  45). 

The  duties  of  the  Corps  of  Engineers  comprise  reconnoitering  and  surveying  for 
military  purposes;  selection  of  sites  and  formation  of  plans  and  estimates  lor  mili- 
tary defenses ;  construction  and  repair  of  fortifications  and  their  accessories;  plan- 
ning and  superintending  of  defensive  or  offensive  works  of  troops  in  the  field :  exam- 
ination of  routes  of  communications  for  supplies,  and  for  military  movements  and 
construction  of  military  roads  and  bridges;  execution  of  river  and  harbor  improve- 
ments assigned  to  it,  and  such  other  duties  as  the  President  may  order.  It  collects, 
arranges,  and  preserves  all  correspondence,  reports,  memoirs,  estimates,  plans,  draw- 
ings,  deeds,  and  titles  relating  to  the  Washington  Aqueduct  and  public  buildings 
and  grounds  in  the  District  of  Columbia,  and  models  which  concern  or  relate  in  any 
wise  to  th.  several  duties  above  enumerated.  (Par.  1472,  A.  K.,  1890.) 

*  See,  also,  note  1  to  paragraph  792,  post. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  251 

697.  Engineers  shall  not  assume  nor  be  ordered  on  any    "Engineers; 

J   limits  of  duty. 

duty  beyond  the  line  of  their  immediate  profession,  except  20^P[-  J.J  ^*- c- 
by  the  special  order  of  the  President.    They  may,  at  these?, 
discretion  of  the  President,  be  transferred  from  one  corps 
to  another,  regard  being  paid  to  rank. 

EXAMINATIONS   FOB   PROMOTION. 

698.  No  officer  of  the  Corps  of  Engineers  below  the  rank    Examinations 
of  field-officer  shall  be  promoted  to  a  higher  grade,  until    ifer.  s,  IMM. 
he  shall  have  been  examined  and  approved  by  a  board  of  ?43.s    '  v 
three  engineers,  senior  to  him  in  rank.     If  an  engineer 

officer  fail  on  such  examination  he  shall  be  suspended  from 
promotion  for  one  year,  when  he  shall  be  re-examined  before 
a  like  board.  In  case  of  failure  on  such  re-examination, 
he  shall  be  dismissed  from  the  service.1 

699.  When  any  lieutenant  of  the  Corps  of  Engineers  [or    Promotion  of 

lieutenants  after 

Ordnance  Corps]  has  served  fourteen   years'  continuous  fourteen  years' 
service  as  lieutenant,  he  shall  be  promoted  to  the  rank  of   Mar.  '3,  isss,  c. 
captain  on  passing  the  examination  provided  by  the  pre-2i9;8Mar.3,i86?, 
ceding  section,  but  such  promotion  shall  not  authorize  an  pV?^*' FebV'27,' 
appointment  to  fill  any  vacancy,  when  such  appointmenti?37'c'69'v'19'p' 
would  increase  the  whole  number  of  officers  in  the  corps  Sec-1207»R-s< 
beyond  the  number  fixed  by  law ;  nor  shall  any  officer  be 
promoted  before  officers  of  the  same  grade  who  rank  him 
in  his  corps. 

700.  That  the  examination  of  officers  of  the  Corps  of 
Engineers  and  Ordnance  Department  who  were  officers 

enlisted  men  in  the  regular  or  volunteer  service,  either  in  ingtne rebellion. 

Subjects. 

the  Army,  Navy,  or  the  Marine  Corps,  during  the  war  of  See.2,  July  27, 
the  rebellion,  shall  be  conducted  by  boards  composed  in  the 
same  manner  as  for  the  examination  of  other  officers  of 
their  respective  corps  and  department;  and  the  examina- 
tions shall  embrace  the  same  subjects  prescribed  for  all 
other  officers  of  similar  grades  in  the  Corps  of  Engineers 
and  Ordnance  Department,  respectively.  Sec.  2,  act  of 
July  27,  1892  (27  Stat.  L.,  276}. 

THE   BATTALION   OF   ENGINEERS. 

701.  The  battalion  of  engineers  shall  consist  of  the  five  taj?£fneer  bat' 
companies  of  engineers  now  existing,  one  sergeant-major,  gj"1^1*66^- 
and  one  quarter  master- sergeant,  who  shall  also  be  cornmis-  p.  335  j  June'^oi 
sary-sergeant.  13-  P-  144 ;  Aus- 3> 

J  1861,  e.42,  s.4,v. 

—  12,  p.  287;    Aug. 

J  Promotions  to  the  grade  of  colonel  in  this  Department  are  made  by  seniority,  sub-  6,  1861,  c.  57,  s.  2, 
ject  to  the  examinations  required  by  section  1206,  Revised  Statutes,  and  the  acts  of  v.  12,  p.  318 ;  May 
October  1, 1890  (26  Stat.  L.,  562),  and  July  27,  1892  (27  Stat,  L.,  276).    For  general  pro-  15, 1846  c.  21,  s.  1, 
visions  respecting  appointments  and  promotions  see  the  chapter  entitled  THE  STAFF  v.  9,  p.  12. 
DEPARTMENTS.  Sec- 1154- B- S' 


252  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

Engineer  com-     7Q2.  Each  company  of  engineer  soldiers  shall  consist  of 

Aug.  3,  i86i,  c.  ten  sergeants,  ten  corporals,  two  musicians,  and  as  many 

287  T  July  is,  mo,'  privates  of  the  first  class,  not  exceeding  sixty-four,  and  as 

c.  294,  s.  2,  v.  16,  p.1  ,.  .    '        „ 

317.  many  privates  of  the  second  class,  not  exceed  ing  sixty-four, 

S"  as  the  President  may  direct,  and  shall  be  recruited  in  the 
same  manner,  and  with  the  same  limitation,  and  shall  be 
entitled  to  the  same  provisions,  allowances,  and  benefits,  in 
every  respect,  as  are  allowed  to  other  troops  constituting 
the  present  military  peace  establishment. 

officers  of  bat-     703.  A  battalion  -adjutant,  a  battalion-quartermaster,  and 

appropriate  officers  to  command  the  companies  and  bat- 

299,Usy29,'v.i4,Vtalion  of  engineer  soldiers,  shall  be  detailed  from  the  Corps 

335;  May  15,1840. 

c.2i,  8.  4,  v.  9,  p.  of  Engineers. 

13;  Aug.  3,  1861, 

c.42,s.4,v.  12,  p.  287;  Aug.  6,  1861,  c.  57,  8.2,  v.  12,  p.  317.     Sec.  1156,  R.  S. 

Duties  of  engi      704.  The  enlisted  men  of  the  engineer  battalion  shall  be 

neer  soldiers. 

May  15,  1840,  c.  instructed  in  and  perform  the  duties  of  sappers,  miners, 

Aug.  3',  i86i,c.42,'  and  poutoniers,  and  shall  aid  in  giving  practical  instruction 

Augjs,  i86i!c.57,'  in  those  branches  at  the  Military  Academy.    They  may  be 

MaA  1863,  c.  78,'  detailed  by  the  Chief  of  Engineers  to  oversee  and   aid 

8'se<r,'ii67',R.s.  laborers  upon  fortifications  and  other  works  in  charge  of 

the  Engineer  Corps,  and,  as  fort  keepers,  to  protect  and 

repair  finished  fortifications. 

chiefEngineer     705.  The  Chief  of  Engineers  is  authorized,  with  the  ap- 
form,  number,  pro  val  of  the  Secretary  of  War,  to  regulate  and  determine 

etc.,  of  pontoons,    ,  ,    _. 

tools,  etc.          the  number,  quality,  form,  and  dimensions  of  the  necessary 
May  15,  1846,  c.  vehicles,  pontoons,  tools,  implements,  arms,  and  other  sup- 
Aug.  aj'isfi,  c.  plies  for  the  use  of  the  battalion  of  engineer  soldiers. 

42   s.  4,  v.  12,  p. 

287;  Aug.  G,  1861,  c.57,  s.  2,  v.  12,  p.  317;  July  28, 

1866,  c.  299,  s.  20,  v.  14,  p.  335.     Sec.  1152,  K.  S. 

Details  for  sig-     706,  The  Secretary  of  War  may  detail  six  officers  from 

nal  duty. 

July  28,  1866,  c.  the  Corps  of  Engineers,  and  anv  number  of  non-commis- 

299  s  29  v    14  T) 

335';  Jufy24,i8'76,'sioned  officers  and  privates  not  exceeding  one  hundred, 

c'secai96',B.s.'  from  the  battalion  of  engineers,  for  the  performance  of 

signal-duty;  but  no  officer  or  enlisted  man  shall  be  so  de- 

tailed until  he  shall  have  been  examined  and  approved  by 

a  military  board  convened  by  the  Secretary  of  War.1 

MISCELLANEOUS  PROVISIONS. 

707'  That  in  determining  the  mileage  of  officers  of  the 
Corps  of  Engineers  traveling  without  troops  on  duty  con- 


96'  456°'  s  liec^e(l  with  works  under  their  charge,  no  deduction  shall 
be  made  for  such  travel  as  may  be  necessary  on  free  or 

1  Section  2  of  the  act  of  October  1,  JS90  (26  Stat.  L  ,  9,  653),  provides  that  all  duties 
pertaining  to  the  Signal  Service  .shall  be  performed  by  the  officers  and  men  of  the 
Signal  Corps  created  by  that  statute. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  253 

bond-aided  or  laud-grant  railways.1     Sec.  15,  act  of  Sep- 
tember 16,  1890  (26  Stat.  L.,  456). 

708.  The  Chief  of  Engineers  may.  with  the  approval  of  .Employment of 

civil  engineers. 

the  Secretary  of  War,  employ  such  civil  engineers,  not    Mar.  20,  we?, 
exceeding  five  in  number,  for  the  purpose  of  executing  the^s.' 
surveys  and  improvements  of  western  and  northwestern 
rivers,  ordered  by  Congress,  as  may  be  necessary  to  the 
proper  and  diligent  prosecution  of  the  same;  and  the  per- 
sons so  employed  may  be  allowed  a  reasonable  compensa- 
tion for  their  services,  not    to  exceed  the  sum  of  three 
thousand  dollars  a  year. 

709.  That  the  Secretary  of  War  shall  report  to  Congress,    Names  to  be  re- 
at  its  next  and  each  succeeding'  session  thereof,  the  n  am  egress,  etc. 

,       ,  r.          •  i  *  i         •     -T  •  i  j      AnS-  5,  1886,  s. 

and  place  of  residence  ot  each  civilian  engineer  employ  eds.v.  24,  P.  335. 
in  the  work  of  improving  rivers  and  harbors  by  means 
and  as  the  result  of  appropriations  made  in  this  and  suc- 
ceeding river  and  harbor  appropriation  bills,  the  time  so 
employed,  the  compensation  paid,  and  the  place  at  and 
work  on  which  employed.2  Sec.  8,  act  of  August  5, 1886  (24 
Stat.  L.,  335).  See  ((ho paragraphs  79  and  80  ante. 

710.  And  the  services  of  skilled  draftsmen,  civil  engi- .  Draftsmen.etp., 

'in  office  of  Chief 

ueers,  and  such  other  services  as  the  secretary  ot  War  may  of  Engineers. 

i          A         i       •      j-i          fc.  f  j-u         May  28, 1896,  v. 

deem  necessary,  may  be  employed  only  in  the  office  of  the29,P.i63. 
Chief  of  Engineers  to  carry  into  effect  the  various  appro- 
priations for  rivers  and  harbors,  fortifications,  and  surveysto 
be  paid  from  such  appropriations :  Provided,  That  *  *  * 
the  Secretary  of  War  shall  each  year,  in  the  annual  esti- 
mates, report  to  Congress  the  number  of  persons  so  em- 
ployed and  the  amount  paid  to  each.3  Act  of  May  28, 1896 
(29  Stat.  L.,  163). 

1  The  mileage  allowance  of  officers  of  the  Corps*  of  Engineers  when  traveling  on  clutv 
connected  with  river  and  harbor  improvements,  being  an  expense  necessarily  inci- 
dental to  and  incurred  on  account  of  such  work,  is  properly  payable  from  the  appro- 
priations therefor  and  not  from  the  appropriation  "Pay  of  the  Army,"  at  the  special 
rates  prescribed  by  army  acts  for  mileage  payable  from  said  appropriation.  3  Dig. 
Compt.  Dec.,  207. 

Officers  of  the  Corps  of  Engineers,  or  those  on  engineer  duty,  traveling  on  service 
connected  with  fortifications  or  works  of  public  improvement,  will  be  paid  their 
travel  allowances  from  the  special  appropriations  for  the  work.  "When  traveling  on 
any  other  duty,  the  mileage  will  be  paid  by  that  branch  of  the  service  intrusted  with 
such  payments  for  the  Army.  (Par.  1487,  A.  R.,  1895.) 

An  Army  officer  traveling  on  a  Government  steamer,  without  incurring  any  per- 
sonal expense  for  subsistence,  is  not  entitled  to  the  mileage  at  4  cents  y.er  milo 
allowed  by  the  act  of  August  6;  1894  (28  Stat.  L.,  237),  said  mileage  being  intended  as  a 
commutation  of  all  expenses  (excepting  actual  cost  of  transportation),  when  such 
expenses  are  incurred.  1  Compt.  Dec.,  122. 

^Section  7  of  the  act  of  June  3,  1896  (29  Stat.  L.,  235),  contains  the  provision  that 
section  2  of  the  act  of  July  31,  1894  (28  Stat.  L.,  205),  "shall  not  be  so  construed  as 
to  prevent  the  employment  of  any  retired  officer  of  the  Army  or  NaA7y  to  do  work 
under  the  direction  of  the  Chief  of  Engineers  of  the  United  States  Army  in  con- 
nection with  the  improvement  of  rivers  and  harbors  of  the  United  States  or  tho 
payment  by  the  proper  officer  of  the  Treasury  of  any  amounts  agreed  upon  as 
compensation  for  such  employment." 

3  The  acts  of  August  5,  1882  (22  Stat.  L.,  240),  and  March  3, 1883  (22  Stat.  L.,  552), 
contained  a  similar  provision,  the  amount  in  each  case  being  fixed  at  $75,000.  For 
continuation  of  the  same  provision  see  the  act  of  July  7,.  1884  (23  Stat,  L.,  181)  in 
which  tho  amount  appropriated  was  fixed  at  $56,000;  tho  acts  of  March  3,  1885  (23 
Stat.  L.,  412),  July  31,  1886  (24  Stat.  L.,  195),  March  3,  1887  (24  Stat.  L.,  617),  July  11, 


254 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


cwef  of  Engi-     7H,  That  tlie  Joint  Committee  of  Congress  011  the  Li- 

neers    may    use 

books  in  Library  brary  be  authorized  to  extend  the  use  of  the  books  111  the 


88o,j.  Library  of  Congress  to  the  members  and  secretary  of  the 
Interstate  Commerce  Commission,  and  the  Chief  of  Engi- 
neers of  the  Corps  of  Engineers  United  States  Army,  resi- 
dent in  Washington,  on  the  same  conditions  and  restrictions 
as  Members  of  Congress  are  allowed  to  use  the  Library. 
J.  R.,  No.  41,  August  28,  1890  (26  Stat.  L.,  678). 
secretary  of  712.  Hereafter  the  Secretary  of  War  shall  furnish  to  the 

"War   to  furnish 

annual  estimates  Secretary  of  the  Treasury,  on  or  before  the  first  day  of  October 

for  river  and  har- 
bor works  on  or  of  each  year,  estimates  of  all  appropriations  required  for 

before  Oct.  1.  .  ,       '  „        , -  ,     „         , 

Mar.  3, 1893,  v.  river  and  harbor  improvements  for  the  next  fiscal  year  to 

be  included  in  the  Book  of  Estimates  prepared  by  law  under 

his  direction.     Act  of  March  3,  1893  (27  Stat.  L.,  603). 

0fAcSVfepEn-     713,  That  the  Secretary  of  War  shall  cause  the  rnanu- 

gisecr8  AU    11  script  °f  the  annual  report  of  the  Chief  of  Engineers  and 

less,  v.  25,  p.  424'.  subordinate  engineers,  relating  to  the  improvement  of  rivers 

and  harbors,  and  the  report  of  the  Mississippi  and  Missouri 

Biver  Commissions  to  be  placed  in  the  hands  of  the  Public 

Printer  on  or  before  the  fifteenth  day  of  October  in  each 

year,  and  the  Public  Printer  shall  cause  said  reports  to  be 

printed  with  an  accurate  and  comprehensive  index  thereof, 

on  or  before  the  first  Monday  in  December  111  each  year,  for 

the  use  of  Congress.     Sec.  8,  act  of  August  11, 1888  (25  Stat. 

L.,  424). 

THE  PUBLIC  BUILDINGS  AND  GROUNDS — THE  LIGHT- 
HOUSE BOARD — THE  COMMISSIONERS  OF  THE  DISTRICT 
OF  COLUMBIA. 


Par. 

714.  Chief  of  Engineers   to   have 

charge  of  public  buildings 
and  grounds. 

715.  Estimates  and  appropria- 

tions. 

716.  Employees  on  public  build- 


Par. 

717.  What  trees,  plants,  etc.,  to  be 

propagated. 

718.  Reports. 

719.  Annual  statement  of  public 

property. 

720.  Extra  pay  prohibited. 


nee!-HettofhEanfo     714>  Tne  Cnief  of>  Engineers  shall  have  charge  of  the 
charge  of  public  public  buildings  and  erounds  in  the  District  of  Columbia. 

buildings  and  °  ' 

grounds.  under  such  regulations  as  may  be  prescribed  by  the  Presi- 

1888  (25  Stat.  L.,  280),  February  26,  1889  (25  Stat.  L.,  730),  July  11,  1890  (26  Stat.  L., 
252),  March  3, 1891  (26  Stat.  L.,  932),  July  16,  1892  (27  Stat.  L.,  208),  and  March  3, 1893 
(27  Stat.  L.,  699),  in  which  the  amount  appropriated  was  fixed  at  $60, 000:  July  31, 1894 
(28  Stat.  L.,  188),  March  2,  1895  (28  Stat.  L.,  789),  and  May  28,  18.96  (29  Stat.'L.,  163), 
in  which  the  amount  appropriated  was  fixed  at  $72,000. 

The  cost  of  services  and  articles  needed  in  the  office  of  the  Chief  of  Engineers  is 
not  properly  chargeable  to  any  appropriation  for  river  and  harbor  improvements,  or 
for  fortifications,  or  to  any  other  appropriation  for  the  military  establishment, 
unless  expressly  authorized  by  law.  3  Dig.  Corupt.  Dec.,  321. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  255 

dent  through  the  War  Department,  except  those  buildings  24^ggi|'v85J'  c> 
and  grounds  which  are  otherwise  provided  for  by  law.1        573';  Mar.  2,1867,' 

c.  167,  s.  2,  v.  14, 
p.  466.     Sec.  1797,  B.S. 

715.  All  estimates  for  public  buildings  and  grounds  in    Estimates  and 

appropriations. 

charge  of  the  Chief  of  Engineers  shall  be  approved  aud^^M*185*.®- 
submitted  by  the  Secretary  of  War,  through  the  Treasury  w|-      '       ' 
Department,  as  other  estimates,  to  the  two  Houses  of  Con- 
gress; aad  all  appropriations  which  have  been  or  may  be 
hereafter  made  for  repairs  or  improvements  of  the  public 
buildings  and  grounds  in  the  District  of  Columbia,  and 
now  in  charge  of  the  Chief  of  Engineers,  shall  be  expended 
under  the  direction  of  the  Secretary  of  War.     (See  par.  48 
ante.) 

716.  The  Chief  of  Engineers  in  charge  of  public  build-    Employees  in 

office  of  public 

ings  and  grounds  is  authorized  to  employ  in  his  office  and  buildings. 
about  the  public  buildings  and  grounds  under  his  control  us,  "'i/v.  16,'p! 
such  number  of  per  sons  for  such  employments,  and  at  such  c.  140,  sT,  v!  17.  p'. 
rates  of  compensation,  as  may  be  appropriated  for  by  Con-  SfiifvJ'ift.1??' 
gress  from  year  to  year.  2  ***'  1799'  B'  s' 

717.  That  hereafter  only  such  trees,  shrubs,  and  plants    What  trees, 

.      .  .  ,  L     -,       L     i  i  plants,  etc.,  to  be 

shall  be  propagated  at  the  greenhouses  and  nursery  as  are  propagated. 
suitable  for  planting  in  the  public  reservations,  to  which  v.  2o°p.  220. 
purpose  only  the  said  productions  of  the  greenhouses  and 
nursery  shall  be  applied.     Act  of  June  20,  1878  (20  Stat. 
L.,  220). 

718.  The  Chief  of  Engineers  shall,  as  Superintendent  of   Meapror3t8i829  c 
Public   Buildings  and   Grounds,  and  as  Superintendent  ^•3'J-'^/6J' 
of  the  Washington  Aqueduct,  annually  submit  the  follow-  242,  s.  15,  v.  16,  P! 
ing  reports  to  the  Secretary  of  War  in  time  to  accompany  c.  84 


the  annual  message  of  the  President  to  Congress,  namely:  iM 

First.  A  report  of  his  operations  for  the  preceding  year,  &.  1812,8.8. 
with  an  account  of  the  manner  in  which  all  appropriations 
for  public  buildings  and  grounds  have  been  applied,  in- 
cluding a  statement  of  the  number  of  public  lots  sold,  or 
remaining  unsold  each  year,  of  the  condition  of  the  public 
buildings  and  grounds,  and  of  the  measures  necessary  to 
betaken  for  the  care  and  preservation  of  all  public  property 
under  his  charge. 

'The  act  of  August  14,  1876,  transferred  the  duties  relating  to  the  care  and 
superintendence  ot  the  Capitol  building  to  the  Architect  of  the  Capitol,  by  the 
following  provision:  "That  the  Architect  of  the  Capitol  shall  have  the  care  and 
superintendence  of  the  Capitol,  including  lighting,  and  shall  submit  through  the 
Secretary  of  the  Interior,  estimates  thereof:  And  provided  further,  That  all  the 
duties  relative  to  the  Capitol  building  heretofore  performed  by  the  Commissioner  of 
Public  Buildings  and  Grounds,  shall  hereafter  be  performed  by  the  Architect  of  the 
Capitol,  whose  office  shall  be  in  the  Capitol  building."  The  act  of  March  3,  1877, 
contained  the  following  provision  on  the  same  subject  :  '  '  The  Architect  of  the  Capitol 
shall  hereafter  have  the  care  and  superintendence  of  the  Capitol,  including  light- 
ing, and  shall  submit  through  the  Secretary  of  the  Interior,  annually,  estimates 
thereof." 

2  The  officer  in  charge  of  the  public  buildings  and  grounds  shall  have  the  rank, 
pay,  and  emolument  of  a  colonel.  Act  of  March  3,  1873  (17  Stat.  L.,  535). 


256  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Second.  A  report  of  the  condition,  progress,  repairs, 
casualties,  and  expenditures  of  the  Washington  Aqueduct 
and  other  public  works  under  his  charge. 

Annual  8tate-     719.  it  shall  be  the  duty  of  the  officer  or  officers  having 

property.  P     lcin  charge  the  property  of  the  United  States  in  and  about 

287, vni7%!822o.^  the  Capitol,  the  President's   House,  and   the  Botanical 

Sec>1832'K>St  Garden^  to  furnish  an  annual  statement  to  the  Architect 

of  the  Capitol  Extension,  by  the  first  day  of  December, 

setting  forth  the  public  property  in  all  the  buildings,  rooms, 

and  grounds  under  their  charge,  purchased  during  each 

year,  and  an  account  of  the  disposition  of  such  property 

during  the  same  period,  whether  by  sale  or  otherwise.1 

.Extra  pay  pro-     720.  No  pay  or  compensation  other  than  is  fixed  by  this 

July  12,  mo,  n.  Title  shall  be  allowed  to  any  officer,  employe,  or  laborer 

251,  s.  4,  v.  16,  p.  .    .     • 

250,  embraced  within  the  provisions  thereof. 

Sec.  1835, 11.  S. 

THE     LIGrHT-HOUSE     BOARD— THE     ENGINEER     COMMIS- 
SIONER  OF    THE   DISTRICT    OF    COLUMBIA. 


Par. 

721.  The  Light-House  Board. 

722.  Superintendents  of  construc- 


Par. 

727.  May    be   selected    from   cap- 
tains. 


tion  of  light-houses.  728.  Assistants  to  Engineer  Com- 

723.  Light-house  inspectors.  missioiier. 

724.  Engineer  Commissioner,  Dis-    729.  Three  authorized. 


trict  of  Columbia. 

725.  Duties. 

726.  Compensation. 


730.  Estimates. 

731.  Powers  of  Commissioners. 


i  '     721>  The  Presideut  SQaU  appoint  two  officers  of  the  Navy, 
y  io2><T  °^  ki^k  rank>  two  officers  of  the  Corps  of  Engineers  of  the 
us.     '       '     Army,  and  two  civilians  of  high  scientific  attainments, 
'  whose  services  may  be  at  the  disposal  of  the  President, 
together  with  an  officer  of  the  Navy  and  an  officer  of  en- 
gineers of  the  Army,  as  secretaries,  who  shall  constitute 
the  Light-House  Board. 
enSta  ?!  construe"     722f  The  President  shall  cause  to  be  detailed  from  the 


Corps  of  tho  Army,  from  time  to  time,  such  offi- 
cers  as  m^  ^e  necessarv  to  superintend  the  construction 
Sec.  4664,  R.S.'  and  renovation  of  light-houses. 
8p^cforsh°u8ein      723'  An  officer  of  the  Army  or  Navy  shall  be  assigned 
8.f2Uv.i3o!'p.1i2o:to  eacu  district  as  a  light-house  inspector,  subject  to  the 
'sec.  4671,  R.S.'  orders  of  the  Light-House  Board;  and  shall  receive  for 
such  service  the  same  pay  and  emoluments  that  he  would 
be  entitled  to  by  law  for  the  performance  of  duty  in  the 
regular  line  of  his  profession,  and  no  other,  except  the 
legal  allowance  per  mile,  when  traveling  under  orders  con- 
nected with  his  duties. 

1  See  note  to  par.  714,  supra. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  257 

ENGINEER   COMMISSIONER,   DISTRICT   OF   COLUMBIA. 

724.  That  the  President  of  the  United  States  shall  detail 

an  officer  of  the  Engineer  Corps  of  the  Army  of  the  United  tnct  of 
States,  who  shall,  subject  to  the  general  supervision  and  engineers, 
direction  of  the  said  Board  of  Commissioners,  have  the  con-  v.  is,  p.m. 
trol  and  charge  of  the  work  of  repair  and  improvement  of  all 
streets,  avenues,  alleys,  sewers,  roads,  and  bridges  of  the 
District  of  Columbia;  and  he  is  hereby  vested  with  all  the 
power  and  authority  of,  and  shall  perform  the  duties  here- 
tofore devolved  upon,  the  chief  engineer  of  the  board  of 
public  works.  He  shall  take  possession  of,  and  preserve 
and  keep,  all  the  instruments  pertaining  to  said  office,  and 
all  the  maps,  charts,  surveys,  books,  records,  and  papers 
relating  to  said  District,  or  to  any  of  the  avenues,  streets, 
alleys,  public  spaces,  squares,  lots  and  buildings  thereon, 
sewers,  or  any  of  them,  as  are  now  in  or  belonging  to  the 
office  of  said  engineer  of  the  board  of  public  works,  and 
shall,  in  books  provided  for  that  purpose,  keep  and  pre- 
serve the  records  now  required  to  be  kept,  and  such  as  may 
be  required  by  regulations  of  said  board.  He  may,  with 
the  advice  and  consent  of  said  Board  of  Commissioners, 
appoint  not  more  than  two  assistant  engineers  from  civil 
life,  who  shall  each  receive  a  salary  of  one  thousand  eight 
hundred  dollars  per  annum,  and  shall  be  subject  to  his 
direction  and  control.  He  shall  receive  no  additional  com-  Engineer-not  to 

receive  addition- 

pensation  for  such  services.1  And  he  shall  not  be  deemed  ai™mpensation^ 
by  reason  of  anything  in  this  act  contained  to  hold  a  civil  deemed  to  hold  a 
office  under  the  laws  of  the  United  States.  And  no  salary  C1  NO  salary  to  be 

..  iii-i  •  -i    j  r>   ,1        -i-w      paid  to  surveyor 

or  compensation  shall  be  paid  to  the  surveyor  of  the  Dis- except, etc.    ' 
trict,  or  any  of  his  subordinates,  except  such  fees  for  spe- 
cial services  as  are  allowed  by  law.     And  the  offices  of   office  of  assist- 

_    ,      ant     surveyors 

assistant  surveyor  and  additional  assistant  surveyor  of  the  abolished.    * 
District  of  Columbia  are  hereby  abolished.     Sec.  3,  act  of 
June,  20  1874. 

725.  That  within  twenty  days  after  the  approval  of  this  Commissioners. 
act  the  President  of  the  United  States,  by  and  with  the2o)P.io3.' 
advice  and  consent  of  the  Senate,  is  hereby  authorized  to 

appoint  two  persons,  who,  with  an  officer  of  the  Corps  of 
Engineers  of  the  United  States  Army,  whose  lineal  rank 
shall  be  above  that  of  captain,  shall  be  Commissioners  of 
the  District  of  Columbia,  and  who,  from  and  after  July  first, 
eighteen  hundred  and  seventy-eight,  shall  exercise  all  the 
powers  and  authority  now  vested  in  the  Commissioners  of 
said  District,  except  as  are  hereinafter  limited  or  provided, 

1  But  see  paragraph  726  post  for  compensation  of  Engineer  Commissioner. 

1919 17 


258  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

and  shall  be  subject  to  all  restrictions  and  limitations  and 
duties  which  are  now  imposed  upon  said  Commissioners. 
The  Commissioner  who  shall  be  an  officer  detailed,  from 
time  to  time,  from  the  Corps  of  Engineers,  by  the  Presi- 
dent, for  this  duty,  shall  not  be  required  to  perform  any 
other,  nor  shall  he  receive  any  other  compensation  than  his 
regular  pay  and  allowances  as  an  officer  of  the  Army.1  The 
two  persons  appointed  from  civil  life  shall,  at  the  time  of 
their  appointment,  be  citizens  of  the  United  States,  and 
shall  have  been  actual  residents  of  the  District  of  Columbia 
for  three  years  next  before  their  appointment,  and  have, 
during  that  period,  claimed  residence  nowhere  else,  and 
one  of  said  three  Commissioners  shall  be  chosen  president 
of  the  Board  of  Commissioners  at  their  first  meeting,  and 
annually  and  whenever  a  vacancy  shall  occur,  thereafter ; 
and  said  Commissioners  shall  each  of  them,  before  entering 
upon  the  discharge  of  his  duties,  take  an  oath  or  affirma- 
tion to  support  the  Constitution  of  the  United  States,  and 
to  faithfully  discharge  the  duties  imposed  upon  him  by  law; 
and  said  Commissioners  appointed  from  civil  life  shall  each 

Salary.  receive  for  his  services  a  compensation  at  the  rate  of  five 

thousand  dollars  per  annum,  and  shall,  before  entering 
upon  the  duties  of  the  office,  each  give  bond  in  the  sum  of 
fifty  thousand  dollars,  with  surety  as  is  required  by  exist- 
ing law.  The  official  term  of  said  Commissioners  appointed 
from  civil  life  shall  be  three  years,  and  until  their  succes 
sors  are  appointed  and  qualified ;  but  the  first  appointment 
shall  be  one  Commissioner  for  one  year  and  one  for  two 
years,  and  at  the  expiration  of  their  respective  terms  their 
successors  shall  be  appointed  for  three  years.  Neither  of 
said  Commissioners,  nor  any  officer  whatsoever  of  the  Dis- 
trict of  Columbia,  shall  be  accepted  as  surety  upon  any  bond 
required  to  be  given  to  the  District  of  Columbia ;  nor  shall 
any  contractor  be  accepted  as  surety  for  any  officer  or  other 
contractor  in  said  District.  Sec.  2,  act  of  June  11,  1878 
(20  Stat.  L.,  103). 

Compensation     726.  Hereafter  the  Engineer  Commissioner  shall  be  enti- 

of Engineer-Corn- ^  -,-,.,.  •,  • 

missioner.         tied  to  receive  such  compensation,  in  addition  to  his  Army 

Mar.  3,  1881,  v.  .  .  , 

21,  p.  460.  pay  and  allowances,  as  will  make  his  compensation  equal 

to  five  thousand  dollars  per  annum,  and  a  sum  sufficient  to 
pay  said  additional  compensation  is  hereby  appropriated.2 
Act  of  March  5,  1881  (21  Stat.  L.,  460). 

JBnt  see  paragraph  726  post  for  compensation  of  Engineer  Commissioner. 

'The  act  of  December  24, 1890  (26  Stat.  L.,  1113),  contains  the  requirement  that  in 
the  event  of  the  absence  or  disability  of  the  Engineer  Commissioner  the  duties 
pertaining  to  his  office  shall  be  performed  by  the  senior  assistant  detailed  from  the 
Corps  of  Engineers. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  259 

727.  Hereafter  such  Engineer  Commissioner  may,  in  the  o^y   t>e   »p- 
discretion  of  the  President  of  the  United  States,  be  detailed  captains. 
from  among  the  captains  or  officers  of  higher  grade  hav-  24,  mo,  v.  26,  p! 
ing  served  at  least  fifteen  years  in  the  Corps  of  Engineers 

of  the  Army  of  the  United  States.  Joint  resolution  No.  7, 
December  24,  1890  (26  Stat.  L.,  1113). 

728.  The  President  of  the  United  States  may  detail  fromEngineer  com- 

ruissioner. 

the  Engineer  Corps  of  the  Army  not  more  than  two  offi-  Juneii,i878,v. 
cers,  of  rank  subordinate  to  that  of  the  engineer  officer 
belonging  to  the  Board  of  Commissioners  of  said  District, 
to  act  .as  assistants  to  said  Engineer  Commissioner,  in  the 
discharge  of  the  special  duties  imposed  upon  him  by  the 
provisions  of  this  act.1  Sec.  5,  act  of  June  11, 1878  (20  Stat. 
L.,  107). 

729.  The  President  of  the  United  States  may  detail  from  iz^hree  author- 
the  Engineer  Corps  of  the  Army  not  more  than  three  offi-    Aug.?,  i894,v. 
cers,  juniors  to  the  engineer  officer  belonging  to  the  Board 

of  Commissioners  of  said  District,  to  act  as  assistants  to 
said  Engineer  Commissioner  in  the  discharge  of  the  special 
duties  imposed  upon  him  by  the  provisions  of  this  act.2 
Act  of  August  7,  1894  (28  Stat.  L.,  246). 

730.  The  said  Commissioners  shall  submit  to  the  Sec-    june°ntei8878  v 
retary  of   the  Treasury  for  the  fiscal  year  ending  June20'pl04> 
thirtieth,  eighteen  hundred  and  seventy -nine,  and  annually 
thereafter,  for  his  examination  and  approval,  a  statement 
showing  in  detail  the  work  proposed  to  be  undertaken  by 

them  during  the  fiscal  year  next  ensuing,  and  the  estimated 
cost  thereof;  also  the  cost  of  constructing,  repairing,  and 
maintaining  all  bridges  authorized  by  law  across  the 
Potomac  Eiver  within  the  District  of  Columbia,  and  also 
all  other  streams  in  said  District;  the  cost  of  maintaining 
all  public  institutions  of  charity,  reformatories,  and  prisons 
belonging  to  or  controlled  wholly  or  in  part  by  the  Dis- 
trict of  Columbia,  and  which  are  now  by  law  supported 
wholly  or  in  part  by  the  United  States  or  District  of  Colum- 
bia; and  also  the  expenses  of  the  Washington  Aqueduct 
and  its  appurtenances ;  and  also  an  itemized  statement  and 
estimate  of  the  amount  necessary  to  defray  the  expenses 
of  the  government  of  the  District  of  Columbia  for  the 
next  fiscal  year:  Provided,  That  nothing  herein  contained 
shall  be  construed  as  transferring  from  the  United  States 
authorities  any  of  the  public  works  within  the  District  of 
Columbia  now  in  the  control  or  supervision  of  said  authori- 
ties. Act  of  June  11,  1878  (20  Stat.  L.,  104). 

'Modified  by  act  of  August  7, 1894.    See  next  paragraph. 

8 This  statute  replaces  the  provision  contained  in  section  5,  act  of  June  11,  1878 
(20  Stat.  L.,  107),  which  authorized  the  detail  of  two  officers  of  engineers,  junior  in 
rank  to  the  Engineer  Commissioner,  as  assistants  to  that  officer. 


260 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


Powers  of  Dis-  73!.  That  the  Commissioners  of  the  District  of  Colum- 
8ioners°Limita-bia  shall  have  all  the  powers  and  be  subject  to  all  the 
tx jnune  10,  mo, v.  duties  and  limitations  provided  in  chapter  eight  of  the 
21lP'9'  Eevised  Statutes  of  the  United  States  relating  to  the  Dis- 

trict of  Columbia,  excepting  such  powers  and  duties  as 
belong  to  the  Chief  of  Engineers:1  Provided,  That  water- 
main  taxes  and  water  rents  shall  be  uniform  in  said  Dis- 
trict. Act  of  June  10,  1879  (21  Stat.  L.,  9). 

THE    WASHINGTON   AQUEDUCT. 


Par. 

732.  Chief  of  Engineers  to  have 

charge  of  the  Washington 
Aqueduct. 

733.  Regulations  to  be  prescribed 

by  President. 

734.  Appropriations;    how    ex- 

pended. 

735.  Unauthorized      opening      of 

pipes;  penalty. 

736.  Willful  breaking,  etc. ;   pen- 

alty. 

737.  Maliciously    making     water 

impure. 

738.  Pipes  for  use  in  public  build- 

ings. 


Par. 

739.  Chief  of  Engineers  not  to  re- 

cede compensation. 

740.  Apartments,  stationery,  etc. 

741 .  Record  of  property  to  be  kept. 

742.  Chief  of  Engineers  to  regu- 

late water  supply. 

743.  Right  of  appeal  to  Secretary 

of  War  from  decision   of 
Chief  of  Engineers. 

744.  Use  of  water  in  public  build- 

ings. 

745.  Diversion  of  water  prohib- 

ited. 


Chief  of  ^Engi-  732.  The  Chief  of  Engineers  shall  have  the  immediate 
charge  of  Wash-  superintendence  of  the  Washington  Aqueduct,  together  with 
e  all  rights,  appurtenances,  and  fixtures  connected  with  the 
84Msari,3v.1ii?'p'.  same,  and  belonging  to  the  United  States,  and  of  all  other 
flii,  snie,2v5'i2?p.  public  works  and  improvements  in  the  District  of  Colum- 
Jfi67^a2  v  ifp'  k*a  in  which  the  Government  has  an  interest,  and  which 
^2o^F'v°i{Mp' are  no^  °therwise  specially  provided  for  by  law.2 

12.  >8SceT'l8bo,'E.S. 

Regulations     733   jje  shall  obey,  in  the  discharge  of  the  duties  men- 
may    be  .pre- 
scribed by Presi- tioned  in  the  preceding  section,  such  regulations,  pursuant 

May  2  1828  c  ^°  ^aw> as  may  ^e  prescribed  by  the  President,  through  the 
Department  of  War. 

s.l,  v.  11,  p.  435;  June  25,  I860,  c  211,8. 1,  v.  12,  p.  106; 
Mar.  30,  1867,  c.  20  s.3  v.  15  p.  12.    Sec.  1801,  R.  S. 

tiot8p^or°paque-     734t  A11  moneys  appropriated  or  hereafter  appropriated 

emended5'5  how for  tne  Washington  Aqueduct,  and  for  the  other  public 

Mar.^  3^1859,  c  works  in  the  District  of  Columbia,  not  otherwise  expressly 

435;'  June  'is'  provided  for  by  law.  shall  be  expended  under  the  direction 

1862,  Res.  No.  36,  X 

v.  12,  p.  620;  Mar.  of  the  Secretary  of  War. 

30, 1867,  c.  20,  s.  3 _ 

Sec.  1802,  B.  S.      '  But  8ee  paragraph  726  ante  for  compensation  of  Engineer  Commissioner. 

2  For  powers  and  duties  of  the  Commissioners  of  the  District  of  Columbia  m  respect 
to  the  Washington  Aqueduct,  see  paragraph  730,  ante.  See  also  the  act  of  June  20, 
1874  (18  Stat.  L.  74),  creating  the  District  Commission. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  261 


735.  No  person,  unless  by  consent  of  the  Chief  of  Engi- 
neers  in  charge  of  the  public  buildings  and  works,  shall  vy^ 

tap  or  open  the  mains  or  pipes  laid  or  hereafter  to  be  laid  84,  8.  5,  V.  n,'  P! 
by  the  United  States,  under  a  penalty  of  not  less  than  sec.  i803,B.s. 
fifty  nor  more  than  five  hundred  dollars. 

736.  Every  person  who  maliciously  breaks,  injures,  de-    wnifui,  etc., 

.      J  7  '  breaking,  etc.,  of 

faces,  or  destroys  any  mam  or  pipe,  bend,  branch,  valve,  pipes;  penalty. 
hydrant,  service  pipe,  or  any  other  fixture  used  for  the  dis-  84,  sar5,  v.  n,'  p'. 
tribution  of  water  throughout  the  streets  and  avenues,  or   sec.  iso*,  B.  s. 
for  its  introduction  into  the  houses,  tenements,  or  buildings 
of  Washington  and  Georgetown,  shall  be  punishable  by 
imprisonment  in  the  county  jail  for  not  more  than  two 
years. 

737.  Every  person  who  maliciously  commits  any  act  by    Maliciously 

17  making    water 

reason  of  which  the  supply  of  water,  or  any  part  thereof,  to  impure. 

the  cities  of  Washington  and  Georgetown,  becomes  impure,  84,  a.  7,  V.  n,'p! 

filthy,  or  unfit  for  use,  shall  be  fined  not  less  than  five    sec.i806,B.s. 

hundred  nor  more  than  one  thousand  dollars,  or  imprisoned 

at  hard  labor  in  the  District  of  Columbia  not  more  than 

three  years  nor  less  than  one  year. 

738.  No  greater  number  of  main  pipes  of  the  Washington    Pipes  for  useof 

T        i-i      Ti  i       -i    •  -•  public  buildings. 

Aqueduct  shall  be  laid  at  the  expense  of  the  United  States  Mar.  3,  1359,  c. 
than  are  sufficient  to  furnish  the  public  buildings,  offices?  43«  8'  '  v'  '  p< 

Sec  1805  B  S 

and  grounds  with  the  necessary  supply  of  water.  The  cost 
of  any  main  pipe,  for  the  supply  of  water  to  the  inhabi- 
tants of  Washington  and  Georgetown,  must  be  paid  by  the 
District  of  Columbia,  in  the  manner  provided  by  law. 

739.  The  Chief  of  Engineers  shall  receive  no  compensa-    Chief  °*'  Engi- 

neers not  to  re- 
tiou,  other  than  his  regular  pay  as  an  officer  of  the  Corps  ceive  compensa- 

of  Engineers,  for  the  services  required  of  him  under  the    Mar.  3,  1359,  c. 

•      •  n    ^    '        m-ji  84,  B.l.V.  ll,p.435. 

provisions  of  this  Title.  sec.i807,B.s. 

740.  He  shall  be  furnished  official  apartments  in  one  of  ^g^™6^8- 
the  public  buildings  in  the  city  of  Washington,  as  may  ^e  84M8ari3)v18n'  c' 
directed  by  the  President,  and  shall  be  supplied  by  the<»35. 
Government  with  the  stationery,  instruments,  books,  and 
furniture  which  may  be  required  for  the  performance  of  his 

duties. 

741.  He  shall  keep  in  his  office  a  complete  record  of  all  C^etorbe°kep0tp" 
the  lands  and  other  property  connected  with  or  belonging  ^  g  vV?£  c' 
to  the  Washington  Aqueduct  and  other  public  works  under  *3s/  .^  ^  g' 
his  charge,  together  with  accurate  plans  and  surveys  of 

the  public  grounds  and  reservations  in  the  District  of 
Columbia.1 

JFor  reports  and  estimates  required  of  the  Chief  of  Engineers  in  connection  with 
the  superintendence  of  the  Washington  Aqueduct,  see  paragraphs  48  and  718,  ante. 


262  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


Engi-  743.  He  and  his  necessary  assistants  are  empowered  to 
water  supply,  use  all  lawful  means  for  the  discharge  of  their  duties  ;  and, 
45,  8&y4,  V.  4,  p!  particularly,  he  shall  have  full  control  over  the  Washington 


^v'!!,  p'.  Aqueduct,  to  regulate  the  manner  in  which  the  authorities 
43sec.i8io,R.s.of  the  District  of  Columbia  may  tap  the  supply  of  water  to 
the  inhabitants  thereof;  and  he  shall  stop  the  same  when- 
ever it  is  found  to  be  no  more  than  adequate  to  the  wants 
of  the  public  buildings  and  grounds. 
night  of  appeal     743.  jjis  decision  on  all  questions  concerning  the  supply 

to    Secretary    of 

war   from   de-  of  water,  as  provided  in  the  preceding  section,  snail  be  SUD- 

cision  of  Chief  of 

Engineers.        ject  to  appeal  to  the  Secretary  of  War  only. 

Mar.  3,  1859,  c.  84,  8.  i,  v.ll,  p.  435.     Sec.  1811,  R.  S. 

744-  And  a11  officers  in  charge  of  public  buildings  in  the 


Mar.  3,  1883,  v.  j)  js£rict  of  Columbia  shall  cause  the  now  of  water  in  the 

22,  p.  bio. 

buildings  under  their  charge  to  be  shut  off  from  five  o'clock 
post  meridian  to  eight  o'clock  ante  meridian:  Provided, 
That  the  water  in  said  public  buildings  is  not  necessarily 
in  use  for  public  business.  Act  of  March  <?,  1883  (27  Stat. 
L.,  615). 

w?tVeTi0rohi°bf  ^^  That  no  portion  of  the  water  conveyed  or  to  be  con- 
it(Mar  3  1893  v  veved  through  or  by  means  of  the  Washington  Aqueduct, 
27,  p.  544!  or  any  appurtenance  thereof,  shall  be  diverted  to  the  sup- 

ply or  use  of  any  building,  premises,  or  establishment 
located  outside  of  the  existing  limits  of  the  District  of 
Columbia.    Act  of  March  3,  1893  (27  Stat.  L.,  544). 
ab°ut     746  That  tlie  lands  belonging  to  the  United  States  and 
°reek  lying  aroulld  the  receiving-reservoir  shall  hereafter  becon- 


18Marg9|  1875'  v>  trolled  in  connection  with  the  Washington  Aqueduct,  and 
shall  be  under  the  charge  and  control  of  the  officer  in 
charge  of  said  aqueduct:  And  provided  further,  That  the 
chief  engineer  is  hereby  directed  to  notify  the  Washington 
and  Georgetown  Railway  Company  to  remove  their  rail- 
way track  from  the  Washington  aqueduct  bridge  over 
Eock  Creek,  within  one  year  from  the  date  of  said  notice; 
and  said  company  shall  make  such  removal  within  the  year 
aforesaid,  and  have  the  right  to  lay  their  tracks  along 
Twenty-sixth  street  from  Pennsylvania  avenue  to  M  street 
north,  and  thence  along  M  street  into  Georgetown,  to  con- 
nect with  their  tracks  on  Bridge  street;  and  said  chief  engi- 
neer may  establish  and  publish  regulations  prohibiting  the 
passage  of  heavily  loaded  wagons  and  carriages  over  said 
bridge.  Act  of  March  3,  1875  (18  Stat.  L.,  393). 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  263 

THE  MISSISSIPPI  RIVER  COMMISSION — THE  MISSOURI 
RIVER  COMMISSION — THE  CALIFORNIA  DEBRIS  COM- 
MISSION. 


Par.  !  Par. 

747-753.  The    Mississippi      River 


CommissioD. 

754.  Water  gauges  on  the  Missis- 

sippi River  and  its  tribu- 
taries. 

755.  Piers  and  cribs  on  the  Mis- 

sissippi. 

756.  Surveys  at  the  South  Pass. 


757.  Regulations  for  navigation  of 

South  Pass. 

758.  Snag    boats,    upper    Missis- 

sippi River. 

759-762.  The  Missouri  River  Com- 
mission. 

763-791.  The  California  Debris 
Commission. 


THE   MISSISSIPPI   RIVER   COMMISSION. 

747.  A  Commission  is  hereby  created,  to  be  called  "  The    Mississippi 

,,....-„.  •        n  j.  •    -  River  Commis- 

Mississippi  River  Commission,"  to  consist  of  seven  inem-  sion. 

bers.     Act  of  June  28, 1879  (21  Stat.  L.,  37).  2iJ  p™?28' 18?9>  v' 

748.  The  President  of  the  United  States  shall,  by  and    g^gg"1' 
with  the  advice  and  consent  of  the  Senate,  appoint  seven 
Commissioners,  three  of  whom  shall  be  selected  from  the 
Engineer  Corps  of  the  Army,  one  from  the  Coast  and  Geo- 
detic Survey,  and  three  from  civil  life,  two  of  whom  shall 

be  civil  engineers.  And  any  vacancy  which  may  occur  in 
the  Commission  shall  in  like  manner  be  filled  by  the  Presi- 
dent of  the  United  States;  and  he  shall  designate  one  of 
the  Commissioners  appointed  from  the  Engineer  Corps  of 
the  Army  to  be  president  of  the  Commission.  The  Com- 
missioners appointed  from  the  Engineer  Corps  of  the  Army 
and  the  Coast  and  Geodetic  Survey  shall  receive  no  other 
pay  or  compensation  than  is  now  allowed  them  by  law,  and 
the  other  three  Commissioners  shall  receive  as  pay  and 
compensation  for  their  services  each  the  sum  of  three 
thousand  dollars  per  annum;  and  the  Commissioners  ap- 
pointed under  this  act  shall  remain  in  office  subject  to  re- 
moval by  the  President  of  the  United  States.  Sec.  2,  ibid. 

749.  It  shall  be  the  duty  of  said  Commission  to  direct    TO  direct  sur- 

V6V8 

and  complete  such  surveys  of  said  river,  between  the  Head  Detail  of  as- 
of  the  Passes  near  its  mouth  to  its  headwaters,  as  may  be  s 
in  progress,  and  to  make  such  additional  surveys,  exami- 
nations, and  investigations,  topographical,  hydrographical, 
and  hydrometrical,  of  said  river  and  its  tributaries,  as 
may  be  deemed  necessary  by  said  Commission  to  carry  out 
the  objects  of  this  act.  And  to  enable  said  Commission  to 
complete  such  surveys,  examinations,  and  investigations, 
the  Secretary  of  War  shall,  when  requested  by  said  Com- 
mission, detail  from  the  Engineer  Corps  of  the  Army  such 
officers  and  men  as  may  be  necessary,  and  shall  place  in  the 


264 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 


Duties. 
Sec.  4,  ibid. 


Report. 


charge  and  for  the  use  of  said  Commission  such  vessel  or 
vessels  and  such  machinery  and  instruments  as  may  be 
under  his  control  and  may  be  deemed  necessary.  And  the 
Secretary  of  the  Treasury  shall,  when  requested  by  said 
Commission,  in  like  manner  detail  from  the  Coast  and  Geo- 
detic Survey  such  officers  and  men  as  may  be  necessary, 
and  shall  place  in  the  charge  and  for  the  use  of  said  Com- 
mission such  vessel  or  vessels  and  such  machinery  and  in- 
struments as  may  be  under  his  control  and  may  be  deemed 
necessary.  And  the  said  Commission  may,  with  the  ap- 
proval of  the  Secretary  of  War,  employ  such  additional 
force  and  assistants,  and  provide,  by  purchase  or  other- 
wise, such  vessels  or  boats  and  such  instruments  and 
mea.ns  as  may  be  deemed  necessary.1  Sec.  <?,  ibid. 

750,  It  shall  be  the  duty  of  said  Commission  to  take  into 
consideration  and  mature  such  plan  or  plans  and  estimates 
as  will  correct,  permanently  locate,  and  deepen  the  chan- 
nel and  protect  the  banks  of  the  Mississippi  Eiver ;  improve 
and  give  safety  and  ease  to  the  navigation  thereof;  prevent 
destructive  floods ;  promote  and  facilitate  commerce,  trade, 
and  the  postal  service ;  and  when  so  prepared  and  matured, 
to  submit  to  the  Secretary  of  War  a  full  and  detailed  report 
of  their  proceedings  and  actions,  and  of  such  plans,  with 
estimates  of  the  cost  thereof,  for  the  purposes  aforesaid,  to 
be  by  him  transmitted  to  Congress :  Provided,  That  the  Com- 
mission shall  report  in  full  upon  the  practicability,  feasi- 
bility, and  probable  cost  of  the  various  plans  known  as  the 
jetty  system,  the  levee  system,  and  the  outlet  system,  as 
well  as  upon  such  others  as  they  deem  necessary.  Sec.  4, 
ibid. 

works°n8truct     ^'  ^ie  sa^  Commission  may,  prior  to  the  completion 
Sec.  5,  ibid,     of  all  the  surveys  and  examinations  contemplated  by  this 

1  The  duties,  under  the  law,  of  the  Missouri  River  Commission,  composed  partly 
of  civilians,  relate  exclusively  to  certain  work  quite  other  than  the  establishing  of 
harbor  lines.  It  is  therefore  not,  as  a  body,  subject  to  the  directions  of  the  Secre- 
tary of  War  in  the  matter  of  establishing  harbor  lines,  nor  are  the  civilian  members 
subject  individually  to  his  orders.  Thus,  while  they  may  consent  to  establish  such 
lines,  it  is  preferable  for  the  Secretary  to  cause  such  work  to  be  done  through 
engineer  officers  of  the  Army.  (Dig.  Opin.  J.  A.  Gen.,  p.  684,  par.  4.) 

Held,  that  the  Mississippi  River  Commission  derived  no  authority,  from  the 
statutes  relating  to  its  functions,  to  make  allotments  of  the  moneys  appropriated  by 
Congress  for  the  improvements  proposed.  Its  province  is  to  indicate  to  Congress 
ivhat  improvements  are  needed  and  how  much  should  be  appropriated  therefor.  It 
has  no  authority  to  disburse  money  appropriated.  An  allotment  made  by  it  is  to  be 
treated  by  the  Secretary  of  War  as  a  recommendation  only.  The  Secretary  mav 
adopt  the  recommendation,  but  in  the  disbursement  should  not  omit  any  of  the 
works  specially  designated  by  Congress  in  the  appropriation  act.  (Ibid.,  par.  2.) 

Held,  that  the  maps  prepared  by  the  Mississippi  Commission,  under  appropriations 
by  Congress,  may  legally  be  disposed  of  at  the  discretion  of  the  Commission,  it 
being  evidently  intended  by  Congress  that  the  information  therein  contained  should 
be  made  public  and  circulated  forthe  public  useand  benefit.  (Ibid.,  p.  683,  par.  1.) 

Held  (January,  1891),  that  the  allowances  for  the  traveling  expenses  of  the  civilian 
members  of  the  Mississippi  and  Missouri  River  commissions  were  not  regulated  by 
any  order  of  the  War  Department  regulating  the  allowances  of  civil  employees  of 
the  military  establishment,  but  were  such  as  are  fixed  by  statute.  They  are  not 
thus  necessarily  $4  per  diem,  since  the  statute  law  provides  for  the  reimbursement 
of  their  actual  necessary  outlay,  which  may  be  more  or  less  than  this  allowance. 
(Ibid.,  p.  684,  par.  3.) 

The  traveling  expenses  of  the  three  civilian  members  of  the  Mississippi  Rivery 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  265 

act,  prepare,  and  submit  to  the  Secretary  of  War  plans, 
specifications,  and  estimates  of  cost  for  such  immediate 
works  as,  in  the  judgment  of  said  Commission,  may  consti- 
tute a  part  of  the  general  system  of  works  herein  contem- 
plated, to  be  by  him  transmitted  to  Congress.  Sec.  5,  ibid. 

752.  The  Secretary  of  War  may  detail  from  the  Engineer 
Corps  of  the  Army  of  the  United  States  an  officer  to  act  as 
secretary  of  said  Commission.1     Sec.  6,  ibid. 

753.  That  whenever,  in  the  prosecution  and  maintenance  jj  e  nts 


of  the  improvement  of  the  Mississippi  River  and  Qthroi  llow 


rivers,  harbors,  and  public  works  for  which  appropriations    Sec-  6-  July  5- 

1884,  v.  23,  p.  148. 

are  herein  made  it  becomes  necessary  or  proper,  in  the 
judgment  of  the  Secretary  of  War,  to  take  possession  of 
material  found  on  bars  and  islands  within  the  river  banks, 
or  other  material  lying  adjacent  or  near  to  the  line  of  any 
of  said  works  and  needful  for  their  prosecution  or  main- 
tenance, the  officers  in  charge  of  said  works  may,  when 
they  cannot  agree  as  to  the  price  with  the  owners  thereof, 
in  the  name  of  the  United  States  take  possession  of  and 
use  the  same  after  first  having  paid  or  secured  to  be  paid 
the  value  thereof,  which  may  have  been  ascertained  in  the 
mode  provided  by  the  laws  of  the  State  wherein  such  prop- 
,erty  or  material  lies:  Provided,  however,  That  when  the 
owner  of  such  property  or  material  shall  fix  a  price  for  the 


Commission  and  of  the  member  appointed  from  the  Coast  and  Geodetic  Survey 
include  t  heir  actual  traveling  expenses  only  for  all  authorized  travel  on  public  duty. 
(3  Dig.  Compt.  Dec.,  219.) 


inspection,  such  table  comforts  only  as  are  generally  provided  by  steamboat  com- 
panies for  the  traveling  public.  (Ibid.) 

When  an  appropriation  is  available  for  the  payment  of  accounts  for  "salaries  and 
traveling  expenses  of  the  Mississippi  River  Commission,  and  for  salaries  and  trav- 
eling expenses  of  assistant  engineers,  and  for  office  expenses  and  contingencies," 
the  following  expenses  are  properly  payable  therefrom  under  existing  laws:  (1) 
The  salaries  of  the  three  members  of  the  Commission  appointed  from  civil  life,  at  the 
rate  of  $3,000  each  per  annum,  and  of  those  only,  the  salaries  of  the  other  members 
being  otherwise  provided  for;  (2)  the  salaries  of  all  civilian  assistant  engineers 
employed  under  the  Commission,  but  not  that  of  the  secretary  of  the  Commission  or 
of  any  other  assistant  engineer  detailed  from  the  Corps  of  Engineers;  (3)  the  actual 
traveling  expenses  only,  for  all  authorized  travel  on  public  duty,  of  the  three  civilian 
members  of  the  Commission  and  of  the  member  appointed  from  the  Coast  and  Geo- 
detic Survey;  (4)  the  actual  traveling  expenses  only,  for  all  authorized  travel  on 
public  duty,  of  all  civilian  assistant  engineers  employed  under  the  Commission ;  (5) 
the  mileage  of  the  three  members  of  the  Commission  appointed  from  the  Engineer 
Corps  of  the  Army,  at  the  rate  of  8  cents  per  mile,  only  under  circumstances  when 
mileage  is  authorized  by  law,  for  all  travel  required  of  them  by  the  Commission  per- 
tinent to  the  objects  for  which  it  was  constituted,  travel  so  required  being  travel 
under  orders  within  the  meaning  of  section  2  of  the  act  of  July  24, 1876,  chapter  226; 
(6)  the  mileage  of  the  secretary  of  the  Commission  and  of  any  other  assistant  engi- 
neer detailed  from  the  Corps  of  Engineers  and  employed  under  the  Commission,  at 
the  rate  of  8  cents  per  mile,  only  when  mileage  is  authorized  by  law,  for  all  travel 
required  of  them  by  the  Commission  pertinent  to  the  objects  for  which  it  was  con- 
stituted; (7)  the  office  expenses  of  the  Commission ;  (8)  the  contingent  expenses  of 
the  Commission.  (Ibid.,  p.  217.) 

The  salaries  accruing  to  the  civilian  members  of  the  Mississippi  Eiver  Commis- 
sion during  a  period  when  the  regular  appropriation  for  their  payment  is  not  avail- 
able can  not  legally  be  paid  from  funds  appropriated  for  the  improvement  of  the 
Mississippi  Eiver,  unless  provision  is  specifically  made  therefor  in  the  act  appro- 
priating such  funds.  (Ibid.,  p.  218.) 

"Vouchers  in  support  of  payments  of  mileage  to  officers  of  tho  Army  belonging  to 
or  employed  by  the  Mississippi  Eiver  Commission  should  be  accompanied  by  orders 
for  the  journeys  performed,  or  by  other  evidence  that  they  were  required  by  the 
Commission  and  were  pertinent  to  the  objects  for  which  it  was  constituted.  (Ibid., 


266  THE   MILITARY   LAWS   OP   THE   UNITED    STATES. 

same  which  in  the  opinion  of  said  officer  in  charge,  shall 
be  reasonable,  he  may  take  the  same  at  such  price  without 
further  delay.  The  Department  of  Justice  shall  represent 
the  interests  of  the  United  States  in  the  legal  proceedings 
under  this  act.  See.  6,  act  of  July  5,  1884  (23  Stat.  L.,  148). 

MISCELLANEOUS   PROVISIONS   RESPECTING  THE   MISSISSIPPI   RIVER. 

water  gauges     754.  The  Secretary  of  War  is   hereby  authorized  and 

on    the     Missis-  .  ., 

sippi  River  and  directed    to    have  water-gauges    established,   and    daily 

Feb.  21,  1871,  observations  made  of   the  rise  and  fall   of   the   Lower 

5988'  4°'  J'  (16'  P'  Mississippi  River  and  its  chief  tributaries,  at  or  in  the 

Sec'5252'B*S*  vicinity  of  Saint  Louis,  Cairo,   Memphis,  Helena,  Napo- 

leon, Providence,  Vicksburgh,  Bed  River  Landing,  Baton 

Rouge,  and  Carrollton,  on  the  Mississippi,  between  the 

mouth  of  the  Missouri  and  the  Gulf  of  Mexico;  and  at 

or  in  the  vicinity  of  Fort  Leaven  woith,  on  the  Missouri; 

Rock  Island,  on  the  Upper  Mississippi;  Louisville,  on  the 

Ohio;  Florence,  on  the  Tennessee;  Jacksonport,  on  the 

White  River;  Little  Rock,  on  the  Arkansas;  and  Alex- 

andria, on  the  Red  River;  and  at  such  other  places  as  the 

Secretary  of  War  may  deem  advisable.    The  expenditure 

for  the  same  shall  be  made  from  the  appropriation  for  the 

improvement  of  rivers  and  harbors;  but  the  annual  cost  of 

the  observations  shall  not  exceed  the  sum  of  five  thousand 

dollars. 

piers  and  cribs     755.  The  owners  of  saw-mills  on  the  Mississippi  River 

on    the    Missis- 

sippi River.  and  the  Saint  Croix  River  in  the  States  of  Wisconsin  and 
278,  v.'  17,  p.  606;  Minnesota  are  authorized  and  empowered,  under  the  direc- 
p.52.  '  'v<  '  tion  of  the  Secretary  of  War.  to  construct  piers  or  cribs  in 

Sec  5254  R  S 

'front  of  their  mill  property  on  the  banks  of  the  river,  for 
the  protection  of  their  mills  and  rafts  against  damage  by 
floods  and  ice  :  Provided,  however,  That  the  piers  or  cribs. 
so  constructed  shall  not  interfere  with  or  obstruct  the 
navigation  of  the  river.  And  in  case  any  pier  or  crib 
constructed  under  authority  of  this  section  shall  at  any 
time,  and  for  any  cause,  be  found  to  obstruct  the  naviga- 
tion of  the  river,  the  Government  expressly  reserves  the 
right  to  remove  or  direct  the  removal  of  it,  at  the  cost  and 
expense  of  the  owners  thereof. 

r  ^ne  purpose  of  securing  the  uninterrupted 


8isec  P4  Auer'ii  examiuations  and  surveys  at  the  South  Pass  of  the  Missis- 

18A'\o5'riation  sippi  Kiver>  as  provided  for  in  the  act  of  March  third,  eight- 

made  permanent,  een  hundred  and  seventy-five,  the  Secretary  of  War,  upon 

the  application  of  the  Chief  of  Engineers,  is  hereby  author- 

ized to  draw  his  warrant  or  requisition  from  time  to  time 

upon  the  Secretary  of  the  Treasury  for  such  sums  as  may 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  267 

be  necessary  to  do  sucli  work,  not  to  exceed  in  the  aggre- 
gate for  each  year  the  amount  appropriated  in  this  act  for 
such  purpose  :  Provided,  however,  That  an  itemized  state- 
ment of  said  expenditures  shall  accompany  the  Annual 
Report  of  the  Chief  of  Engineers.  Sec.  4,  act  of  August  117 
1888  (25  Stat.  L.,  424). 

757.  That  the  Secretary  of  War  be,  and  is  hereby,  author-  fa£££l*ttonoi 
ized  to  make  such  rules  and  regulations  for  the  navigation  s.oufh  Pas.8.  Mis- 

0  °  sissippi  River. 

of  the  South  Pass  of  the  Mississippi  Eiver  as  to  him  shall    sec.s,  Aug.ii, 

1888,  v.  25,  p.  424. 

seem  necessary  or  expedient  tor  the  purpose  of  preventing    sec.3,  sept.  19, 
any  obstruction  to  the  channel  through  said  South  Pass 
and  any  injury  to  the  works  therein  constructed. 

The  term  "  South  Pass,"  as  herein  employed,  shall  be 
construed  as  embracing  the  entire  extent  of  channel  be- 
tween the  upper  ends  of  the  works  at  the  head  of  the  Pass 
and  the  outer  or  sea  end  of  the  jetties  at  the  entrance 
from  the  Gulf  of  Mexico  5  and  any  willful  violation  of  any 
rule  or  regulation  made  by  the  Secretary  of  War  in  pur- 
suance of  this  act  shall  be  deemed  a  misdemeanor,  for  Penalty  for  vi. 

olation. 

which  the  owner  or  owners,  agent  or  agents,  master  or 
pilot  of  the  vessel  so  offending  shall  be  separatively  or  col- 
lectively responsible,  and  on  conviction  thereof  shall  be 
punished  by  a  fine  not  exceeding  two  hundred  and  fifty 
dollars  or  by  imprisonment  not  exceeding  three  months, 
at  the  discretion  of  the  court.1  Sec.  5,  act  of  August  11, 
1888  (25  Stat.  L.,  424). 

758.  That  for  the  purpose  of  securing  the  uninterrupted    Snag  boats, 

1  °  .  Upper  Mississip- 

work  of  operating  snag  boats  on  the  Upper  Mississippi  pi  ^River. 

River,  and  of  removing  snags,  wrecks,  and  other  obstruc-  isss,  v.  25,  p.  424! 

tions  in  the  Mississippi  River,  the  Secretary  of  War,  upon  for, 

the  application  of  the  Chief  of  Engineers,  is  hereby  author-  ne 

ized  to  draw  his  warrant  or  requisition  from  time  to  time 

upon  the  Secretary  of  the  Treasury  for  such  suras  as  may 

be  necessary  to  do  such  work,  not  to  exceed  in  the  aggre- 

gate for  each  year  the  amounts  appropriated  in  this  act  for 

such  purposes  :  Provided,  however,  That  an  itemized  state- 

ment of  said  expenses  shall  accompany  the  Annual  Report 

of  the  Chief  of  Engineers.     Sec.  4,  act  of  August  11,  1888 

(25  Stat.  L.,  424). 

MISSOURI   RIVER   COMMISSION. 

759.  That  a  Commission  to  be  called  the  Missouri  River 


Commission. 

Commission  is  hereby  created,  to  consist  of  five  members. 


760.  That  the  President  shall  nominate  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  appoint  five  Commis-  23,  P.i44. 

1  See  also,  section  3,  act  of  September  1&,  1890,  (26  Stat.  L.,  452). 


268  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

sioners,  three  of  whom  shall  be  selected  from  the  Corps  of 
Engineers  of  the  Army  and  two  from  civil  life,  one  of  whom 
at  least  shall  be  a  civil  engineer  5  and  he  shall  in  like  man- 
ner fill  any  vacancy  in  said  Commission ;  and  he  shall  desig- 
nate one  of  the  Commissioners  appointed  from  the  Corps  of 
Engineers  to  be  president  of  the  Commission.  The  Com- 
missioners appointed  from  the  Corps  of  Engineers  shall 
receive  no  other  pay  or  compensation  than  is  allowed  them 
by  law,  and  the  other  two  Commissioners  shall  each  receive 
for  their  services  pay  at  the  rate  of  two  thousand  five  hun- 
dred dollars  per  annum,  out  of  any  money  appropriated  for 
the  Missouri  River  -3  and  all  said  Commissioners  shall  remain 
in  office  subject  to  removal  by  the  President  of  the  United 
States.  Ibid. 

jwSf8'  761.  That  it  shall  be  the  duty  of  said  Commission  to 

superintend  and  direct  such  improvement  of  said  river 
and  to  carry  into  execution  such  plans  for  the  improve- 
ment of  the  navigation  of  said  river  from  its  mouth  to 
its  headwaters  as  may  now  be  devised  and  in  progress, 
and  to  continue  and  complete  such  surveys  as  may  now 
be  in  progress,  and  to  make  such  additional  surveys, 
examinations,  and  investigations,  topographical,  hydro- 
graphical,  and  hydrometrical,  and  to  consider,  devise, 
and  mature  such  additional  plan  or  plans,  and  all  such 
estimates  as  may  be  deemed  necessary  and  best,  to 
obtain  and  maintain  a  channel  and  depth  of  water  in 
said  river  sufficient  for  the  purposes  of  commerce  and 
navigation,  and  to  accomplish  the  objects  of  this  act 5  and 
to  enable  the  Commission  to  perform  the  duties  assigned 
them  the  Secretary  of  War  is  hereby  authorized  and  directed 
to  transfer  to  and  place  under  the  control  and  superintend- 
ence of  said  Commission  all  such  vessels,  barges,  machinery, 
and  instruments,  and  such  plant  as  may  now  be  provided, 
devised,  or  in  use  on  said  river,  from  appropriations  here- 
tofore made  for  said  river,  or  other  sources,  and  when 
thereto  requested  by  said  Commission  to  detail  from  the 
Corps  of  Engineers  such  officers  and  men  as  may  be  neces- 
sary, and  to  place  in  the  charge  of  said  Commission  any 
such  vessels,  machinery,  and  instruments  under  his  control 
as  may  be  deemed  necessary.  And  said  Commission  may, 
with  the  approval  of  the  Secretary  of  War,  employ  such 
additional  force  and  assistants,  and  provide,  by  purchase 
or  otherwise,  such  additional  vessels,  boats,  machinery, 
instruments,  and  means,  as  may  be  deemed  necessary;  to 
be  paid  for  by  appropriations  made  or  to  be  made  for  said 
river.  Ibid. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  269 

762.  That  the  said  Commission  shall,  under  the  direction    supervision  of 

7  expenditure  of 

and  with  the  approval  of  the  Secretary  of  War,  superintend,  appropriations. 
control,  and  expend  for  the  purposes  of  this  act  all  appro- 
priations or  unexpended  balances  heretofore  made  for  the 
improvement  of  said  river,  and  which  may  hereafter  be  made 
for  said  river,  or  so  much  thereof  as  may  be  necessary,  and 
shall  prepare  and  submit,  through  the  Chief  of  the  Engineer 
Corps,  to  the  Secretary  of  War,  to  be  by  him  transmitted 
to  Congress  at  the  beginning  of  the  regular  session  in  Decem- 
ber of  each  year,  a  full  and  detailed  report  of  all  their  pro- 
ceedings and  actions,  and  of  all  such  plans  and  systems  of 
work  as  may  now  be  devised  and  in  progress  and  carried 
out  by  them,  and  of  all  such  additional  plans  and  systems 
of  Avorks  as  may  be  devised  and  matured  by  them,  with 
full  and  detailed  estimates  of  the  cost  thereof,  and  state- 
ments of  all  expenditures  made  by  them ;  and  the  Secretary 
of  War  may  detail  from  the  Corps  of  Engineers  or  other 
corps  of  the  Army  an  officer  to  act  as  secretary  of  the  Com-  secretary. 
mission,  to  aid  them  in  their  work;  and  all  money  hereby 
or  hereafter  appropriated  for  the  improvement  of  said 
Missouri  Eiver  shall  be  expended  under  the  direction  of  the 
Secretary  of  War  in  accordance  with  the  plans,  specifica- 
tions, and  recommendations  of  said  Commission  when  such 
plans,  specifications,  and  recommendations  shall  have  been 
approved  by  Congress.  IMd. 

THE    CALIFORNIA   DEBRIS   COMMISSION. 

763.  That  a  Commission  is  hereby  created,  to  be  known    California  pe- 

..  bris  Commission. 

as  the  California  Debris  Commission,  consisting  of  three    Mar.  i,  1892,  v. 

members.    The  President  of  the  United  States  shall,  by 

and  with  the  advice  and  consent  of  the  Senate,  appoint  the 

Commission  from  officers  of  the  Corps  of  Engineers,  United 

States  Army.    Vacancies  occurring  therein  shall  be  filled 

in  like  manner.    It  shall  have  the  authority  and  exercise 

the  powers  hereinafter  set  forth,  under  the  supervision  of 

the  Chief  of  Engineers  and  direction  of  the  Secretary  of 

War.1    Act  of  March  1,  1892  (27  Stat.  £.,  507). 

764.  That  said  Commission  shall  organize  within  thirty  e 
days  after  its  appointment  by  the  selection  of  such  officers 
as  may  be  required  in  the  performance  of  its  duties,  the 
same  to  be  selected  from  the  members  thereof.  The  mem- 
bers of  said  Commission  shall  receive  no  greater  compensa- 
tion than  is  now  allowed  by  law  to  each,  respectively,  as  an 

irThe  act  of  June  14, 1880  (21  Stat.  L.,  196),  required  the  Secretary  of  War  to  cause 
such  surveys,  etc.,  to  be  made  as  would  enable  a  scheme  to  be  devised  to  prevent 
further  injury  to  the  navigable  waters  of  California,  due  to  the  deposit  in  the  same 
of  d6bris  from  the  mines. 


270  THE   MILITARY   LAWS    OF   THE    UNITED   STATES. 

officer  of  said  Corps  of  Engineers.  It  shall  also  adopt 
rules  and  regulations>  not  inconsistent  with  law,  to  govern 
its  deliberations  and  prescribe  the  method  of  procedure 
under  the  provisions  of  this  act.  Sec.  2,  ibid. 

jurisdiction.  765.  That  the  jurisdiction  of  said  Commission,  in  so  far 
as  the  same  affects  mining  carried  on  by  the  hydraulic 
process,  shall  extend  to  all  such  mining  in  the  territory 
drained  by  the  Sacramento  and  San  Joaquin  river  systems 
*n  *^e  State  of  California.  Hydraulic  mining,  as  defined  in 


prohibited^       section  eigh  t  hereof,  directly  or  i  ndirectly  injuring  the  n  avi- 

gability  of  said  river  systems,  carried  on  in  said  territory 

other  than  as  permitted  under  the  provisions  of  this  act  is 

hereby  prohibited  and  declared  unlawful.     Sec.  5,  ibid. 

Duty  of  com-     766.  That  it  shall  be  the  duty  of  said  Commission  to 

""plans'.  mature  and  adopt  such  plan  or  plans,  from  examinations 

and  surveys  already  made  and  from  such  additional  exam- 
inations and  surveys  as  it  may  deem  necessary,  as  will  im- 
prove the  navigability  of  all  the  rivers  comprising  said 
systems,  deepen  their  channels,  and  protect  their  banks. 
Such  plan  or  plans  shall  be  matured  with  a  view  of  making 
the  same  effective  as  against  the  encroachment  of  and  dam- 
age from  debris  resulting  from  mining  operations,  natural 
erosion,  or  other  causes,  with  a  view  of  restoring,  as  near 
as  practicable  and  the  necessities  of  commerce  and  naviga- 
tion demand,  the  navigability  of  said  rivers  to  the  condi- 
tion existing  in  eighteen  hundred  and  sixty,  and  permitting 
mining  by  the  hydraulic  process,  as  the  term  is  understood 
in  said  state,  to  be  carried  on,  provided  the  same  can  be 
accomplished,  without  injury  to  the  navigability  of  said 
rivers  or  the  lauds  adjacent  thereto.  Sec.  4,  ibid. 
Suryeysofstor-  767.  That  it  shall  further  examine,  survey,  and  deter- 

age  sites  for  de- 

bris, re3ervoir8,  mine  the  utility  and  practicability,  for  the  purposes  herein- 

Sec.  5,  ibid.      after  indicated,  of  storage  sites  in  the  tributaries  of  said 

rivers  and  in  the  respective  branches  of  said  tributaries,  or 

in  the  plains,  basins,  sloughs,  and  tule  and  swamp  lands 

adjacent  to  or  along  the  course  of  said  rivers,  for  the  storage 

of  debris  or  water  or  as  settling  reservoirs,  with  the  object 

of  using  the  same  by  either  or  all  of  these  methods  to  aid 

in  the  improvement  and  protection  of  said  navigable  rivers 

by  preventing  deposits  therein  of  debris  resulting  from 

mining  operations,  natural  erosion,  or  other  causes,  or  for 

affording  relief  thereto  in  flood  time  and  providing  sufficient 

water  to  maintain  scouring  force  therein  in  the  summer  sea- 

h^rau^lTand8011'  ^^  ^n  connection  therewith  to  investigate  such  hy- 

other  mines,  etc.  draulic  and  other  mines  as  are  now  or  may  have  been 

worked  by  methods  intended  to  restrain  the  debris  and 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  271 

material  moved  in  operating  such  mines  by  impounding 
dams,  settling  reservoirs,  or  otherwise,  and  in  general  to 
make  such  study  of  and  researches  in  the  hydraulic  mining 
industry  as  science,  experience,  and  engineering  skill  may 
suggest  as  practicable  and  useful  in  devising  a  method  or 
methods  whereby  such  mining  may  be  carried  on  as  afore- 
said. Sec.  5,  ibid. 

768.  That  the  said  Commission  shall  from  time  to  time  .Noting  condi- 
note  the  conditions  of  the  navigable  channels  of  said  rivOT  channel? 

,  ._.  .,  Sec.  6,  ibid, 

systems,  by  cross-section  surveys  or  otherwise,  in  order  to 
ascertain  the  effect  therein  of  such  hydraulic  mining  oper- 
ations as  may  be  permitted  by  its  orders  and  such  as  is 
caused  by  erosion,  natural  or  otherwise.  Sec.  6',  ibid. 

769.  That  said  Commission  shall  submit  to  the  Chief   Annual  report. 
of  Engineers,  for  the  information  of  the  Secretary  of  War. 

on  or  before  the  fifteenth  day  of  November  of  each  year,  a 
report  of  its  labors  and  transactions,  with  plans  for  the 
construction,  completion,  and  preservation  of  the  public 
works  outlined  in  this  act,  together  with  estimates  of  the 
cost  thereof,  stating  what  amounts  can  be  profitably  ex- 
pended thereon  each  year.  The  Secretary  of  War  shall 
thereupon  submit  same  to  Congress  on  or  before  the  meet- 
ing thereof.  Sec.  7,  ibid. 

770.  That  for  the  purposes  of  this  act  "  hydraulic  min-m'^  Hydraulic 
ing"  and  "mining  by  the  hydraulic  process,"  are  hereby  'mini*>s  bjr*&§ 

,       ,          ,     ,  -,,.;.  hydraulic     proc 

declared  to  have  the  meaning  and  application  given  to  ess  "  defined. 

.  _   ,  .  .,   a,  „      to_     „.,     J  Seo.8,ttid. 

said  terms  in  said  State.     Sec.  6,  ibid. 

771.  That  the  individual  proprietor  or  proprietors,  or  in    Hydraulic 

f,  .  .          .,  .     ,      ,     „      miners  must  file 

case  of  a  corporation  its  manager  or  agent  appointed  for  petition    with 


that  purpose,  owning  mining  ground  in  the  territory  in 
the  State  of  California  mentioned  in  section  three  hereof, 
which  it  is  desired  to  work  by  the  hydraulic  process,  must 
file  with  said  Commission  a  verified  petition,  setting  forth 
such  facts  as  will  comply  with  law  and  the  rules  prescribed 
by  said  Commission.  Sec.  9,  ibid. 

772.  That  said  petition  shall  be  accompanied  by  an  contentsofpe- 
instrument  duly  executed  and  acknowledged,  as  required  tzsec.'io,  ibid. 
by  the  law  of  the  said  State,  whereby  the  owner  or  owners 
of  such  mine  or  mines  surrender  to  the  United  States  the 
right  and  privilege  to  regulate  by  law,  as  provided  in  this 
act,  or  any  law  that  may  hereafter  be  enacted,  or  by  such 
rules  and  regulations  as  may  be  prescribed  by  virtue 
thereof,  the  manner  and  method  in  which  the  debris  result- 
ing from  the  working  of  said  mine  or  mines  shall  be  re- 
strained, and  what  amount  shall  be  produced  therefrom; 
it  being  understood  that  the  surrender  aforesaid  shall  not 


272  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

be  construed  as  in  any  way  affecting  the  right  of  such 
owner  or  owners  to  operate  said  mine  or  mines  by  any 
other  process  or  method  now  in  use  in  said  State :  Provided, 
That  they  shall  not  interfere  with  the  navigability  of  the 
aforesaid  rivers.  Sec.  10,  ibid. 
joint  petition  773.  That  the  owners  of  several  mining  claims  situ- 

by  mining  claim 

ownersrequiring  ated  so  as  to  require  a  common  dumping  ground  or  dam 

a  common  dump-  .      .          . 

ing  ground,  etc.  or  other  restraining  works  lor  the  debris  issuing  therefrom 
in  one  or  more  sites  may  file  a  joint  petition  setting  forth 
such  facts  in  addition  to  the  requirements  of  section  nine 
hereof ;  and  where  the  owner  of  a  hydraulic  mine  or  own- 
ers of  several  such  mines  have  and  use  common  dumping 
sites  for  impounding  debris  or  as  settling  reservoirs,  which 
sites  are  located  below  the  mine  of  an  applicant  not  en- 
titled to  use  same,  such  fact  shall  also  be  stated  in  said 
petition.  Thereupon  the  same  proceedings  shall  be  had  as 
provided  for  herein.  Sec.  11,  ibid. 

Notice  of  peti-  774.  A  notice  specifying  briefly  the  contents  of  said 
published.  petition  and  fixing  a  time  previous  to  which  all  proofs  are 
to  be  submitted  shall  be  published  by  said  Commission  in 
some  newspaper  or  newspapers  of  general  circulation  in  the 
communities  interested  in  the  matter  set  forth  therein.  If 
published  in  a  daily  paper  such  publication  shall  continue 
for  at  least  ten  days;  if  in  a  weekly  paper  in  at  least  three 

Examination  issues  of  the  same.  Pending  publication  thereof  said  Com- 
mission, or  a  committee  thereof,  shall  examine  the  mine  and 

Affi d  a  v  1 1 s ,  premises  described  in  such  petition.    On  or  before  the  time 

plans,  etc.,  may 

be  filed.  so  fixed  all  parties  interested,  either  as  petitioners  or  con- 

testants, whether  miners  or  agriculturists,  may  file  affida- 
vits, plans,  and  maps  in  support  of  their  respective  claims. 

Hearings.  Further  hearings,  upon  notice  to  all  parties  of  record,  may 
be  granted  by  the  Commission  when  necessary.  Sec.  12,  ibid. 

Favorable  de      775.  That  in  case  a  majority  of  the  members  of  said 

cisions    within  .  .  . 

thirty  days.       Commission,  within  thirtv  davs  alter  the  time  so  fixed,  con- 

id.  .  .  \.  .... 

cur  in  a  decision  in  favor  of  the  petitioner  or  petitioners, 
the  said  Commission  shall  thereupon  make  an  order  direct- 
ing the  methods  and  specifying  in  detail  the  manner  in 
which  operations  shall  proceed  in  such  mine  or  mines; 
what  restraining  or  impounding  works,  if  facilities  therefor 
can  be  found,  shall  be  built,  and  maintained  ;  how  and  of 
what  material;  where  to  be  located;  and  in  general  set 
forth  such  further  requirements  and  safeguards  as  will 
protect  the  public  interests  and  prevent  injury  to  the  said 
navigable  rivers,  and  the  lands  adjacent  thereto,  with  such 
further  conditions  and  limitations  as  will  observe  all  the 
provisions  of  this  act  in  relation  to  the  working  thereof  and 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  273 

tlie  payment  of  taxes  on  the  gross  proceeds  of  the  same: 
Provided,  That  all  expense  incurred  in  complying  with  said 
order  shall  be  borne  by  the  owner  or  owners  of  such  mine 
or  mines.  Sec.  13,  ibid. 

776.  That  such  petitioner  or  petitioners  must  within  a    Plans,  etc.,  to 
reasonable  time  present  plans  and  specifications  of  allconmiiwion. 
works  required  to  be  built  in  pursuance  of  said  order  for    ''ec' 14>  *bld' 
examination,  correction,  and  approval  by  said  Commission  5 

and  thereupon  work  may  immediately  commence  thereon    Commence- 

-,        ,,  .    .  „       .  ,  ^  .      .  ment  of  works. 

under  the  supervision  01  said  Commission  or  representative    supervision, 
thereof  attached  thereto  from  said  Corps  of  Engineers, 
who  shall  inspect  same  from  time  to  time.    Upon  completion    completion, 
thereof,  if  found  in  every  respect  to  meet  the  requirements 
of  the  said  order  and  said  approved  plans  and  specifica- 
tions, permission  shall  thereupon  be  granted  to  the  owner    Permission  to 

f  -.  .  .    .        commence    min- 

or  owners  of  such  mine  or  mines  to  commence  mining  ing. 
operations,  subject  to  the  conditions  of  said  order  and  the 
provisions  of  this  act.     Sec.  14,  ibid. 

777.  That  no  permission  granted  to  a  mine  owner  or    Conditions, 

,         .,/.  ,      „     .    ,  ,v,  ,     etc.,  as  to  com- 

OWUerS  under  this  act  shall  take  effect,  so  far  as  regard  smencing   opera- 

the  working  of  a  mine,  until  all  impounding  dams  or  other  Tec'.  15,  ibid. 

restraining  works,  if  any  are  prescribed  by  the  order  grant; 

ing  such  permission,  have  been  completed  and  until  the 

impounding  dams  or  other  restraining  works  or  settling 

reservoirs  provided  by  said  Commission  have  reached  such 

a  stage  as,  in  the  opinion  of  said  Commission,  it  is  safe  to 

use«the  same:  Provided,  however.  That  if  said  Commission    Navigation, 

etc.,   sufficiently 

shall  be  of  the  opinion  that  the  restraining  and  other  works  protected, 
already  constructed  at  the  mine  or  mines  shall  be  sufficient 
to  protect  the  navigable  rivers  of  said  systems  and  the 
work  of  said  Commission,  then  the  owner  or  owners  of  such 
mine  or  mines  may  be  permitted  to  commence  operations. 
Sec.  15,  ibid. 

778.  That  in  case  the  joint  petition  referred  to  in  sec-    Allotment  of 
tioii  eleven  hereof  is  granted,  the  Commission  shall  fix  the strSng  °c om- 
respective  amounts  to  be  paid  by  each  owner  of  such  mines  m°Ant™.  5osetc 
toward  providing  and  building  necessary  impounding  dams 

or  other  restraining  works.    In  the  event  of  a  petition 
being  filed  after  the  entry  of  such  order,  or  in  case  the 
impounding  dam  or  dams  or  other  restraining  works  have 
already  been  constructed  and  accepted  by  said  Commission, 
the  Commission  shall  fix  such  amount  as  maybe  reason-    subsequent 
able  for  the  privilege  of  dumping  therein,  which  amount  pay  for°dumping 
shall  be  divided  between  the  original  owners  of  suchpr 
impounding  dams  or  other  restraining  works  in  proportion  0/spupc^rtiaI1meSt 
to  the  amount  respectively  paid  by  each  party  owning  to    original 
1919 is 


274  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

same.    The  expense  of  maintaining  and  protecting  such 
Maintenance,  joint  dams  or  works  shall  be  divided  among  mine-owners 
using  the  same  in  such  proportion  as  the  Commission  shall 
Location.        determine.    In  all  cases  where  it  is  practicable,  restraining 
and  impounding  works  are  to  be  provided,  constructed, 
and  maintained  by  mine-owners  near  or  below  the  mine 
or  mines  before  reaching  the  main  tributaries  of  said  navi- 
gable waters.     Sec.  16,  ibid. 
Limit  of  debris     779.  That  at  no  time  shall  any  more  debris  be  per- 

washed  away. 

Sec.  17,  ibid,  mitted  to  be  washed  away  from  any  hydraulic  mine  or 
mines  situated  on  the  tributaries  of  said  rivers  and  the 
respective  branches  of  each,  worked  under  the  provisions 
of  this  act,  than  can  be  impounded  within  the  restraining 
works  erected.  Sec.  17,  ibid. 

Modifications,     739.  That  the  said  Commission  may  at  any  time,  when 

etc.,  oi  orders. 

Sec.  is,  ibid,  the  condition  of  the  navigable  rivers  or  when  the  capa- 
cities of  all  impounding  and  settling  facilities  erected  by 
mine-owners  or  such  as  may  be  provided  by  Government 
authority  require  same,  modify  the  order  granting  the 
privilege  to  mine  by  the  hydraulic  mining  process  so  as 
to  reduce  amount  thereof  to  meet  the  capacities  of  the 
facilities  then  in  use,  or  if  actually  required  in  order  to 
protect  the  navigable  rivers  from  damage,  may  revoke 
same  until  the  further  notice  of  the  Commission.  Sec.  18,ibid. 

Forfeiture  for     7gi,  That  an  intentional  violation  on  the  part  of  a  mine 

violating    condi- 
tions, owner  or  owners,  company,  or  corporation,  or  the  agents 

or  employees  of  either,  of  the  conditions  of  the  order 
granted  pursuant  to  section  thirteen,  or  such  modifica- 
tions thereof  as  may  have  been  made  by  said  Commis- 
sion, shall  work  a  forfeiture  of  the  privileges  thereby 
conferred,  and  upon  notice  being  served  by  the  order  of 
said  Commission  upon  such  owner  or  owners,  company, 
or  corporation,  or  agent  in  charge,  work  shall  immediately 
cease.  Said  Commission  shall  take  necessary  steps  to  en- 
ordere,rSrentof  f°rce  its  orders  in  case  of  the  failure,  neglect,  or  refusal  of 
such  owner  or  owners,  company,  or  corporation,  or  agents 
thereof,  to  comply  therewith,  or  in  the  event  of  any  person 
or  persons,  company,  or  corporation  working  by  said  proc- 
ess in  said  territory  contrary  to  law.  Sec.  19,  ibid. 
visiting  and  782.  That  said  Commission,  or  a  committee  therefrom,  or 

inspection  of 

mse?'2o  .m  officer  of  said  corps  assigned  to  duty  under  its  orders, 
shall,  whenever  deemed  necessary,  visit  said  territory  and 
all  mines  operating  under  the  provisions  of  this  act.  A 
report  of  such  examination  shall  be  placed  on  file.  Sec. 
20,  ibid. 


THE    MILITARY    LAWS    OF   THE    UNITED   STATES.  275 

783   That  the  said  Commission  is  hereby  granted  the.  u«»  of  public 

^    °  lands  and  - 

right  to  use  any  of  the  public  lauds  of  the  United  States, 


or  any  rock,  stone,  timber,  trees,  brush,  or  material  thereon 
or  therein,  for  any  of  the  purposes  of  this  act;  and  the 
Secretary  of  the  Interior  is  hereby  authorized  and  re- 
quested, after  notice  has  been  filed  with  the  Commissioner 
of  the  General  Land  Office  by  said  Commission,  setting 
forth  what  public  lands  are  required  by  it  under  the 
authority  of  this  section,  that  such  land  or  lands  shall  be 
withdrawn  from  sale  and  entry  under  the  laws  of  the 
United  States.  Sec.  21,  ibid. 

784.  That  any  person  or  persons  who  willfully  or  inali- 
ciously  injure,  damage,  or  destroy,  or  attempt  to  injure,  demeanor. 

toco,  22,  ib'itl» 

damage,  or  destroy,  any  dam  or  other  work  erected  under 
the  provisions  of  this  act  for  restraining,  impounding,  or 
settling  purposes,  or  for  use  in  connection  therewith,  shall 
be  guilty  of  a  misdemeanor,  and  upon  conviction  thereof 
shall  be  fined  not  to  exceed  the  sum  of  five  thousand  dol-  Penalty. 
lars  or  be  imprisoned  not  to  exceed  five  years,  or  by  both 
such  fine  and  imprisonment,  in  the  discretion  of  the  court. 
Sec.  22,  ibid. 

785.  And  any  per  son  or  persons,  company  or  corporation,    violation  of 

i,        v7*i       •         £     XT,     ^  j  '  this  act  a  misde- 

their  agents  or  employees,  who  shall  mine  by  the  hydraulic  meaner. 

process  directly  or  indirectly  injuring  the  navigable  waters 

of  the  United  States,  in  violation  of  the  provisions  of  this 

act  shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 

thereof  shall  be  punished  by  a  fine  not  exceeding  five  thou-    Penalty. 

sand  dollars,  or  by  imprisonment  not  exceeding  one  year, 

or  by  both  such  fine  and  imprisonment,  in  the  discretion 

of  the  court:  Provided,  That  this  section  shall  take  effect  ti^hen    opera' 

on  the  first  day  of  May,  eighteen  hundred  and  ninety-three. 

Ibid. 

786.  That  upon  the  construction  by  the  said  Commission 
of  dams  or  other  works  for  the  detention  of  debris  from 
hydraulic  mines  and  the  issuing  of  the  order  provided 
for  by  this  act  to  any  individual,  company,  or  corporation 
to  work  any  mine  or  mines  by  hydraulic  process,  the  indi- 
vidual, company  or  corporation  operating  thereunder  work- 
ing any  mine  or  mines  by  hydraulic  process,  the  debris 
from  which  flows  into  or  is  in  whole  or  in  part  restrained 
by  such  dams  or  other  works  erected  by  said  Commission, 
shall  pay  a  tax  of  three  per  centum  on  the  gross  proceeds 
of  his,  their,  or  its  mine  so  worked;  which  tax  of  three  per 
centum  shall  be  ascertained  and  paid  in  accordance  with 
regulations  to  be  adopted  by  the  Secretary  of  the  Treasury, 


276  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

and  the  Treasurer  of  the  United  States  is  hereby  author- 
ized to  receive  the  same.     Sec.  23,  ibid. 

A  "Debris  787.  All  sums  of  money  paid  into  the  Treasury  under 
Expenditures  this  section  shall  be  set  apart  and  credited  to  a  fund  to 
oomnSoni7  °be  known  as  the  "Debris  Fund,"  and  shall  be  expended 
by  said  Commission  under  the  supervision  of  the  Chief  of 
Engineers  and  direction  of  the  Secretary  of  War,  in  addi- 
tion to  the  appropriations  made  by  law  in  the  construction 
and  maintenance  of  such  restraining  works  and  settling 
reservoirs  as  may  be  proper  and  necessary:  Provided, 
That  said  commission  is  hereby  authorized  to  receive 
and  pay  into  the  Treasury  from  the  owner  or  owners  of 
mines  worked  by  the  hydraulic  process,  to  whom  permis- 
sion may  have  been  granted  so  to  work  under  the  provi- 
sions hereof,  such  money  advances  as  may  be  offered  to  aid 
in  the  construction  of  such,  impounding  dams  or  other  re- 
straining works,  or  settling  reservoirs,  or  sites  therefor,  as 
may  be  deemed  necessary  by  said  Commission  to  protect 
the  navigable  channels  of  said  river  systems,  on  condition 
that  all  moneys  so  advanced  shall  be  refunded  as  the  said 
tax  is  paid  into  the  said  debris  fund:  And  provided  further, 
That  in  no  event  shall  the  Government  of  the  United  States 
be  held  liable  to  refund  same  except  as  directed  by  this 
section.  Ibid. 

788.  Tnat  for  tQe  Purpose  of  securing  harmony  of  action 
economy  in  expenditures  in  the  work  to  be  done  by 
sec.24,i&u.  the  United  States  and  the  State  of  California,  respec- 
tively, the  former  in  its  plans  for  the  improvement  and  pro- 
tection of  the  navigable  streams  and  to  prevent  the  depos- 
iting of  mining  debris  or  other  materials  within  the  same, 
and  the  latter  in  its  plans  authorized  by  law  for  the  recla 
mation,  drainage,  and  protection  of  its  lands,  or  relating  to 
the  working  of  hydraulic  mines,  the  said  Commission  is 
empowered  to  consult  thereon  with  a  commission  of  engi- 
neers of  said  State,  if  authorized  by  said  State  for  said 
purpose,  the  result  of  such  conference  to  be  reported  to  the 
Chief  of  Engineers  of  the  United  States  Army,  and  if  by 
him  approved  shall  be  followed  by  said  Commission.  Sec, 
24,  ibid. 

frtmpde?brisfand     789<  That  said  Commission,  in  order  that  such  material 
to  be  expended  as  is  now  or  may  hereafter  be  lodged  in  the  tributaries  of 

in    restraining 

works,    etc.,  the  Sacramento  and  San  Joacmin  E/iver  svsteins,  resulting; 

above   head  of  -  .    . 

navigation,  etc.  from  mining  operations,  natural  erosion,  or  other  causes, 
shall  be  prevented  from  injuring  the  said  navigable  rivers 
or  such  of  the  tributaries  of  either  as  may  be  navigable  and 
the  land  adjacent  thereto,  is  hereby  directed  and  empow- 
ered, when  appropriations  are  made  therefor  by  law,  or  suffi- 


THE    MILITARY   LAWS   OF    THE    UNITED    STATES.  277 

cient  money  is  deposited  for  that  purpose  in  said  debris  fund, 
to  build  at  such  points  above  the  head  of  navigation  in  said 
rivers  and  on  the  main  tributaries  thereof,  or  branches  of 
such  tributaries,  or  at  any  place  adjacent  to  the  same 
which,  in  the  judgment  of  said  Commission,  will  effect  said 
object  (the  same  to  be  of  such  material  as  will  insure  safety 
and  permanency),  such  restraining  or  impounding  dams  and 
settling  reservoirs,  with  such  canals,  locks,  or  other  works 
adapted  and  required  to  complete  same.  Sec.  25,  ibid. 

790.  The  recommendations  contained  in  Executive  Docu-  .  Recommend  a - 
ment  Numbered  Two  hundred  and  sixty- seven,  Fifty-first  ami  made  the  ba- 

.,    „  . .        _.  .    -,  sis  of  operations. 

Congress,  second  session,  and  Executive  Document  Num- 
bered Ninety-eight,  Forty-seventh  Congress,  first  session,    1Ud- 
as  far  as  they  refer  to  impounding  dams,  or  other  restrain- 
ing works,  are  hereby  adopted,  and  the  same  are  directed  to 
be  made  the  basis  of  operations.    The  sum  of  fifteen  thou-  Appropriations, 
sand  dollars  is  hereby  appropriated,  from  moneys  in  the 
Treasury  not  otherwise  appropriated,  to  be  immediately 
available,  to  defray  the  expenses  of  said  Commission.    Ibid. 

791.  That  the  Treasurer  of  the  United  States  be,  and  he    Treasurer  of 

7  the  United  States 

is  hereby,  authorized  to  receive  from  the  State  of  California,  to  receive  funds 
through  the  Debris  Commission  of  said  State,  or  other  ofn-  the^tatoof  cai£ 
cer  thereunto  duly  authorized,  any  and  all  sums  of  money    June  3, 1896,  v. 
that  have  been,  or  may  hereafter  be,  appropriated  by  said 
State  for  the  purposes  herein  set  forth.     And  said  sums 
when  so  received  are  hereby  appropriated  for  the  purposes 
above  named,  to  be  expended  in  the  manner  above  provided. 
Act  of  June  5,  1896  (29  Stat.  L.,  232). 


FORTIFICATIONS.1 


Par. 

792.  Sites  for  fortifications. 


Par. 

793.  Construction  of  fortifica 
tions;  contracts. 


792.  For  the  procurement  of  land,  or  right  pertaining 
thereto,  needed  for  the  site,  location,  construction,  or  pros-  v  £6U|-  ^  1890« 
ecution  of  works  for  fortifications  and  coast  defenses,  five 

'See  also  the  title  "  Board  of  Ordnance  and  Fortification,"  in  the  chapter  entitled 
THE  ORDNANCE  DEPARTMENT.  See  also  par.  696,  ante. 

The  act  of  February  10, 1875,  contained  the  following  provision :  "  For  torpedoes 
for  harbor  defenses,  and  the  preservation  of  the  same,  and  for  torpedo  experiments 
in  their  application  to  harbor  and  land  defense,  and  for  instruction  of  engineer  bat- 
talion in  their  preparation  and  application,  fifty  thousand  dollars:  Provided,  That 
the  money  herein  appropriated  for  torpedoes  shall  only  be  used  in  the  establishment 
and  maintenance  of  torpedoes  to  be  operated  from  shore  stations  for  the  destruction 
of  an  enemy's  vessel  approaching  the  shore  or  entering  the  channels  and  fairways  of 
harbors,"  which  was  repeated  in  the  acts  of  February  10, 1875,  Juue  20, 1876,  March 
3, 1877,  March  23, 1878,  March  3, 1879,  May  4,  ]  880,  March  3, 1881,  and  May  19, 1882.  The 
act  of  March  3, 1883,  contained  the  requirement  that  "one-half  of  the  money  herein 
appropriated  may  be  used  in  the  purchase  of  torpedoes  of  the  latest  improvement.' 

If,  in  the  opinion  of  the  Chief  of  Engineers,  a  contemplated  building  will  be  an 
appliance  necessary  in  the  operation  of  submarine  mines  lor  the  defense  of  harbors, 
or  will,  when  completed,  be  used  in  operating  such  mines,  or  in  such  a  way  as  to 
render  their  operation  possible  for  the  defense  of  harbors,  the  cost  of  its  erection  is 
chargeable  to  the  appropriation  for  torpedoes  for  harbor  defense.  3  Compt.  Dec.,  30. 


278      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

hundred  thousand  dollars,  or  so  much  thereof  as  may  be 
necessary,  and  hereafter  the  Secretary  of  War  may  cause 
proceedings  to  be  instituted,  in  the  name  of  the  United 
States,in  any  court  having  jurisdiction  of  such  proceedings, 
for  the  acquirement,  by  condemnation,  of  any  land,  or  right 
pertaining  thereto,  needed  for  the  site,  location,  construc- 
tion, or  prosecution  of  works  for  fortifications  and  coast  de- 
fenses, such  proceedings  to  be  prosecuted  in  accordance  with 
the  laws  relating  to  suits  for  the  condemnation  of  property 
of  the  States  wherein  the  proceedings  may  be  instituted : 
Provided,  That  when  the  owner  of  such  land  or  rights 
pertaining  thereto  shall  fix  a  price  for  the  same,  which,  in 
the  opinion  of  the  Secretary  of  War,  shall  be  reasonable, 
he  may  purchase  the  same  at  such  price  without  further 
delay:  Provided  further,  That  the  Secretary  of  'War  is 
hereby  authorized  to  accept  on  behalf  of  the  United  States 
donations  of  lands  or  rights  pertaining  thereto  required  for 
the  above-mentioned  purposes :  And  provided  further,  That 
nothing  herein  contained  shall  be  construed  to  authorize 
an  expenditure,  or  to  involve  the  Government  in  any 
contract  or  contracts  for  the  future  payment  of  money,  in 
excess  of  the  sums  appropriated  therefor.1  Act  of  August 
18,  1890  (26  Stat.  L.,  316). 
Construction  793.  ]?or  construction  of  fortifications,  two  million  five 

of  fortifications; 

contracts.          hundred  thousand  dollars:  of  which   sum  riot  exceeding- 
June    6,    1896, 

v. 29, p. 257.  one  hundred  thousand  dollars  may  be  expended  for  the 
construction  of  the  necessary  buildings  connected  there- 
with :  Provided,  That  contracts  may  be  entered  into,  un- 
der the  direction  of  the  Secretary  of  War,  for  materials 
and  work  for  construction  of  fortifications,  to  be  paid  for 

1  When  an  engineer  is  sent  to  any  military  department,  fortress,  garrison,  or  post,  a 
duplicate  of  his  orders  will  be  sent  to  the  commanding  officer.  On  his  arrival  the 
engineer  will  communicate  his  orders,  and  necessary  facilities  for  executing  them 
will  be  afforded  by  the  commanding  officer.  While  so  on  duty,  without  being  espe- 
cially put  under  the  direction  of  the  commanding  officer,  the  engineer  officer  will  be 
furnished  with  copies  of  all  orders  and  regulations  of  the  command  relative  to 
etiquette  and  police,  and  with  the  countersign  when  quartered  within  a  chain  of 
sentinels.  The  engineer  officer  will  report  to  the  commanding  officer  when  relieved 
from  duty  within  the  limits  of  the  command.  (Par.  1483,  A.  R.,  1895.) 

Engineer  officers  engaged  in  the  construction  of  fortifications  or  other  public 
works  are  entitled  to  allowances  of  quarters,  mess  rooms,  and  kitchens,  with  fuel 
for  the  same,  as  are  provided  by  regulations  for  officers  at  garrisoned  posts.  (Par. 

No  alterations  will  be  made  in  any  fortification  or  in  its  casemates,  quarters,  bar 
racks,  magazines,  storehouses,  or  any  other  building  belonging  to  it,  nor  will  any 
building  of  any  kind  or  work  of  earth,  masonry,  or  timber  be  erected  within  the 
fortification  or  within  a  mile  of  its  exterior,  except  under  the  direction  of  the  Chief 
of  Engineers  and  by  authority  of  the  Secretary  of  War.  (Par.  1485,  ibid.) 

When  the  Chief  of  Engineers  is  satisfied  that  any  fortification  is  in  all  respects 
complete  so  far  as  the  functions  of  his  department  are  concerned,  he  will  give  notice 
thereof  to  the  Secretary  of  War,  that  it  may  be  turned  over  for  occupation  by  the 
troops.  Until  its  completion  has  been  announced,  no  work  will  be  occupied  by 
troops  except  by  the  special  order  of  the  Secretary  of  War.  (Par.  1486,  ibid.) 

Where  land  proposed  to  be  conveyed  by  a  State  to  the  United  States  for  the  pur- 
pose of  fortifications  was  described  in  the  proffered  deed  as  extending  to  the  sea  and 
in  a  line  along  the  sea,  held  that  such  a  deed  would  convey  only  land  extending  to  and 
bounded  by  high-water  mark,  and  advised  that  the  grant  should  be  so  expressed 
as  specifically  to  include  the  shore  to  low- water  mark,  and  should  also  embrace  such 
water-covered  lands  as  would  be  sufficient  to  prevent  the  erection  by  the  authority 
of  the  State  of  structures  that  might  interfere  with  the  proper  use  of  the  land  for 
purposes  of  fortifications.  Dig.  Opin.  J.  A.  Gen  465  par  2 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


279 


as  appropriations  may  from  time  to  time  be  made  by  law, 
to  an  additional  sum  in  the  aggregate  not  to  exceed  two 
million  five  hundred  thousand  dollars.  Act  of  June  6, 1896 
(29  Stat.  L.,  257}. 

RIVER   AND   HARBOR  WORKS. 


Par. 

794.  Navigable  rivers  within  pub- 

lic lands  to  be  public  high- 
ways. 

795.  Rivers  in  Louisiana. 

796.  The  Iowa  River. 

797.  The  Des  Homes  River. 

798.  Certain  rivers  in  Alabama  to 

be  free  from  tolls. 

799.  The  Maquoketa  River. 

800.  Commercial  statistics  atriver 

and  harbor  works. 


Par. 

801.  Preliminary  surveys;  reports. 

802.  Preliminary  examinations. 

803.  Supplemental    reports    pro- 

hibited. 

804.  List  of  surveys  to  be  sub- 

mitted to  Congress. 

805.  Compilation  of  laws  relating 

to  improvement,  etc.,  of  the 
navigable  waters  of  the 
United  States. 


NAVIGABLE   WATERS   OF   THE   UNITED   STATES. 

794.  All  navigable  rivers,  within  the  territory  occupied    Navigable  riv- 

i  ,  i.     ers  within  public 

by  the  public  lands,  shall  remain  and  be  deemed  public  lands  to  be  public 

liiirh  wftvs 

highways;  and,  in  all  cases  where  the  opposite  banks  of  May  is,  1796.  c. 

•       LI      u    i  *'£?  ^     29,  s.  9,  v.l,  p.  468; 

any  streams  not  navigable  belong  to  different  persons,  the  Mar.  3.1803,0.27, 
stream  and  the  bed  thereof  shall  become  common  to  both.  8'  seeTalft^s. 

795.  All  the  navigable  rivers  and  waters  in  the  former  .ers  in  Loui- 


Territories  of  Orleans  and  Louisiana  shall  be  and  forever    Mar.  3,  mi,  c. 

46,  8.  12,  v.  2,  p. 

remain  public  highways.1  606.    sec.525i,R.s. 

796.  So  much  of  the  Iowa  Eiver  within  the  State  of  Iowa    The    i  o  w  a 
as  lies  north  of  the  town  of  Wapello  shall  not  be  deemed    July  is,  ises, 

,  ,        .  i  T      i  •    i  -i-i  ji'T  Kes.  Ko.  55,  v.  15, 

a  navigable  river  or  public  highway,  but  dams  and  bridges  p.  257;  May   e, 

1870,  c.  92,  v.  16,  p. 

may  be  constructed  across  it.  121. 

^AI*  "  **  is  n  ^ 

797.  The  Des  Moines  Eiver  shall  forever  remain  free  from  Thebes  Moines 
any  toll,  or  other  charge  whatever,  for  any  property  of  the    Aug.  s,  i846,c. 

-_—  _.     •ii/^j  •        *  i      «  •  •  T  103,  s«  3,v.  9.  p.  78  j 

United  States,  or  persons  in  their  service,  passing  along  Jan.  20,  1370,  c  7, 

,,  v.  16,  p.  6  1. 

the  same.  sec.  52*6,  R.  s. 

798.  The  Tennessee,  Coosa,  Cahawba,  and  Black  War-    Certain  rivers 

in  Alabama  to  be 

rior  Rivers,  within  the  State  of  Alabama,  shall  be  forever  free  from  toils. 
free  from  toll  for  all  property  belonging  to  the  United  75,8*7%.  '4,  P.  290.' 
States,  and  for  all  persons  in  their  service,  and  for  all  citi- 
zens of  the  United  States,  except  as  to  such  tolls  as  may 
be  allowed  by  act  of  Congress. 

799.  The  assent  of  Congress  is  given  to  the  construction   TheMaquoketa 
of  bridges  across  the  Maquoketa  Eiver,  within  the  State    July  is,  ISGS, 
of  Iowa,  with  or  without  draws,  as  may  be  provided  by  is,  0.257. 

,,      ,  „  ,,      ,   ~,  Sec.  5250,  R.  S. 

the  laws  of  that  State. 


JThe  doctrine  of  the  common  law  as  to  the  navigability  of  waters  has  no  applica- 
tion in  this  country.  Here  the  ebb  and  flow  of  the  tide  do  not  constitute  the  usual 
test,  as  in  England,  or  any  test  at  all  of  the  navigability  of  waters.  The  test  by 


280  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


RIVER  AND   HARBOR  WORKS. 

statiS  at  river     ®^'  ^a^  owners,  agents,  masters,  and  clerks  of  vessels 
and  harbor  arriving  at  or  departing  from  localities  where  works  of 
Feb.  21,  1892,  river  and  harbor  improvement  are  carried  on  shall  furnish, 
V'v.'i4/pp.  73,  on  application  of  the  persons  in  local  charge  of  the  works, 
a  comprehensive  statement  of  vessels,  passengers,  freight, 
and  tonnage.    That  every  person  or  persons  offending 
against  the  provisions  of  this  act  shall,  for  each  and  every 
offense,  be  liable  to  a  fine  of  one  hundred  dollars,  or  im- 
prisonment not  exceeding  two  months,  to  be  enforced  in 
any  district  court  in  the  United  States  within  whose  terri- 
torial jurisdiction  such  offense  may  have  been  committed. 
Act  of  February  21,  1891  (26  Stat.  £.,  766). 

PRELIMINARY  SURVEYS. 

st™veysiminary     ®^*  ^na*  in  every  case  where  surveys  are  made,  the 

22A"fii' 1882>  v>  report  thereon  shall  embrace  such  information  concerning 

the  commercial  importance,  present  and  prospective,  of 

the  improvement  contemplated  thereby  and  such  general 

•which  to  determine  the  navigability  of  waters  in  our  rivers  is  found  in  their  navi- 
gable capacity.  Those  rivers  are  navigable  rivers  in  law  which  are  navigable  in 
fact.  Elvers  are  navigable  in  fact  when  they  are  used,  or  are  susceptible  of  being 
used,  in  their  ordinary  condition,  as  highways  for  commerce,  on  which  trade  and 
travel  are,  or  may  be  conducted,  in  the  customary  modes  of  trade  and  travel  on 
•waters;  and  they  constitute  navigable  waters  of  the  United  States,  within  the 
meaning  of  the  acts  of  Congress,  in  contradistinction  from  the  navigable  waters  of 
the  States,  when  they  form,  in  their  ordinary  condition,  by  themselves,  or  by  unit- 
ing with  other  waters,  a  continued  highway  over  which  commerce  may  be  carried 
on,  with  other  States  or  foreign  countries,  in  the  customary  modes  in  which  such 
commerce  is  conducted  by  water.  The  Daniel  Ball,  10  Wall.,  557;  The  Montello,  11 
Wall.,  411 ;  Ex  parte  Boyer,  109  U.  S  ,  629. 

If  a  river  is  not  of  itself  a  highway  for  commerce  with  other  States  or  foreign 
countries,  or  does  not'form  such  highway  by  its  connection  with  other  waters,  and 
is  only  navigable  between  different  places  within  the  State,  it  is  not  a  navigable 
water  of  the  United  States,  but  only  a  navigable  water  of  a  State.  The  Montello, 
11  Wall.,  411. 

The  right  to  regulate  commerce  includes  the  right  to  regulate  navigation,  and 
hence  to  regulate  and  improve  navigable  rivers  and  ports  on  such  rivers.  So.  Car. 
v.  Ga.,  93  U.  S.,  4;  Oilman  v.  Philadelphia,  3  Wall.,  713. 

In  the  case  of  the  Willamette  Bridge  Co.  v.  Hatch  (125  U.  S.,  1),  it  was  held  that 
clauses  similar  to  that  contained  in  the  ordinance  of  1787  (1  Stat.  L.,  52,  note)  to  the 
effect  that  ''the  navigable  waters  leading  into  the  Mississippi  and  the  St.  Lawrence, 
and  the  carrying  places  between  them,  shall  be  common  highways  and  forever  free, 
as  well  to  the  inhabitants  of  the  said  territory  as  to  the  citizens  of  the  United  States 
and  those  of  any  other  States  that  may  be  admitted  into  the  Confederacy,  without 
any  tax,  impost,  or  duty  therefor"  (see  also  act  of  February  14,  1859,  11  Stat.  L.,  383), 
do  not  refer  to  physical  obstructions,  but  to  political  regulations  which  would  ham- 
per the  freedom  of  commerce,  *  *  *  and  can  not  be  regarded  as  establishing 
the  police  power  of  the  United  States  over  such  river,  or  as  giving  the  Federal  courts 
jurisdiction  to  hear  and  determine,  according  to  Federal  law,  every  complaint  that 
may  be  made  of  an  impediment  in,  or  an  encroachment  upon,  the  navigation  of  these 
rivers.  *  *  *  Nor  does  the  expenditure  of  money  in  improving  navigation  of 
such  rivers  import  an  assumption  of  police  power. 

When  Congress,  in  the  exercise  of  its  exclusive  power  to  direct  how  the  public 
money  shall  be  employed,  has  appropriated  a  certain  sum,  to  be  devoted,  without 
exceptions  or  provisos,  to  certain  specific  internal  improvement,  it  devolves  upon  the 
Executive  Department  of  the  Government,  charged  as  it  is  with  the  execution  of  the 
laws  enacted  by  the  legislature,  to  proceed  with  the  work  under  the  appropriation, 
without  entertaining  any  question  as  to  the  expediency  of  the  expenditure.  Thus' 
where  Congress  had  made  in  general  terms  an  appropriation  of  a  specific  amount  for 
improving  a-  certain  river,  advised  that  it  was  for  the  officer  charged  with  the 
improvement  simply  to  do  the  work,  without  delaying,  to  raise  or  consider  questions 
or  claims  of  title  to  the  land,  etc.,  to  be  affected  b'y  the  improvement;  such  matters 
being  quite  beyond  the  province  of  an  executive  official  under  the  circumstances. 


Dig.  Opin.  J.  A.  Gen.,  446,  par.  1 ;  532,  pars.  8,  9. 
The  United  States  is  not  the  owner  of  the 


_  _ . the  soil  of  the  beds  of  navigable  waters  (a) 

nor  of  the  shores  of  tide  waters  below  high-water  mark,  nor  of  the  shores  of  waters 

a  See  the  definition  of  the  term  "navigable  waters  of  the  United  States,"  in  The 
Daniel  Ball,  10  Wall.,  557;  Ex  parte  Boyer,  109  U.  S.,  629. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      281 

commercial  statistics  as  the  Secretary  of  War  may  be  able 
to  procure.1 
802   That  the  preliminary  examinations  ordered  in  this    Preliminary 

examination  to 

act  shall  be  made  by  the  local  engineer  in  charge  of  the bo  made  before 
district,  or  an  engineer  detailed  for  the  purpose;  and  such    §00.7,  July  13, 

11  -ij-i-i  •  -ij-i  -,...  .  n  1892,  v.  27,  p.  115. 

local  or  detailed  engineer  and  the  division  engineer  of 
the  locality  shall  report  to  the  Chief  of  Engineers,  first, 
whether,  in  their  opinion,  the  harbor  or  river  under  exam- 
ination is  worthy  of  improvement  by  the  General  Govern- 
ment, and  shall  state  in  such  report  fully  and  particularly 
the  facts  and  reasons  on  which  they  base  such  opinions, 
including  the  present  and  prospective  demands  of  com- 
merce; and,  second,  if  worthy  of  improvement  by  the  Gen- 
eral Government,  what  it  will  cost  to  survey  the  same  with 
a  view  of  submitting  plan  and  estimate  for  its  improvement; 
and  the  Chief  Engineer  shall  submit  to  the  Secretary  of 
War  the  reports  of  the  local  and  division  engineers,  with 
his  views  thereon  and  his  opinion  of  the  public  necessity 
or  convenience  to  be  subserved  by  the  proposed  improve- 
ment; and  all  such  reports  of  preliminary  examinations, 
with  such  recommendations  as  he  may  see  proper  to  make, 
shall  be  transmitted  by  the  Secretary  of  War  to  the  House 

not  affected  by  the  tide  below  the  ordinary  water  line  of  the  same,  except  as  it  may 
have  become  grantee  of  such  soil  from  the  State  or  from  individuals.  The  property 
and  jurisdiction  in  and  over  the  beds  and  shores  of  navigable  waters  is  in  general  in 
the  State,  or  in  the  individual  riparian  owner  as  grantee  mediately  or  immediately 
from  the  State  (a).  But  under  the  power  to  regulate  commerce  Congress  may  assume, 
as  it  has  recently  assumed,  the  power  so  to  regulate  navigation  over  navigable  waters 
within  the  States  as  to  prohibit  its  obstruction  and  to  cause  the  removal  of  obstruc- 
tions thereto,  and  such  power  when  exercised  is  exclusive  (b).  In  exercising  this 
power  it  can  not  divest  rights  of  title  or  occupation  in  a  State  or  individuals,  but 
these  rights  are  left  to  be  enjoyed  as  before,  subject,  however,  to  the  paramount  pub- 
lic right  ot  freeing  navigation  from  obstruction  possessed  and  exercised  by  the 
United  States  through  Congress.  In  the  execution  of  the  laws  relating  to  obstruc- 
tions to  navigation  the  Secretary  of  War  has  no  general  authority,  but  only  such  as 
may  have  been  vested  in  him  by  legislation  of  Congress,  especially  in  the  river  and 
harbor  appropriation  acts.  (Ibid.,  529,  par.  1.) 

As  between  the  United  States  and  a  State,  the  soil  of  the  bed  of  navigable  waters 
and  of  the  shores  of  tide  waters  below  high-water  mark,  or — on  rivers  not  reached 
by  the  tide-the  soil  of  the  shores  below  the  ordinary  water  line  (as  not  aflected 
by  freshet  or  unusual  drought)  belongs  to  the  State.  But  natural  accretions  to 
land  owned  by  private  individuals  belong  to  the  owners  of  the  laud.  Thus,  held 
that  the  accretions  to  Hog  Island,  in  the  mouth  of  the  Missouri  River,  belonged,  not 
to  the  United  States  or  to  the  State  of  Missouri,  but  to  the  owner  of  the  island. 
Ibid.,  465,  par.  1;  515,  pars.  11, 12. 

Held  that  it  was  doubtful  whether  "floatable"  streams,  i.  e.,  streams  capable  only 
of  being  used  for  floating  saw-logs,  timber,  etc.,  not  being  navigable  in  a  general 
sense,  were  included  in  the  term  "navigable  waters  of  the  United  States,"  as 
employed  in  statutes  providing  that  dams  shall  not  be  constructed  in  such  waters 
without  the  permission  of  the  Secretary  of  War.  But  held  that  it  was  clearly  com- 
petent for  Congress,  under  the  commerce  clause  of  the  Constitution,  to  exercise 


POWER  OF  THE  STATES. 

Until  the  dormant  power  of  the  Constitution  is  awakened  and  made  effective,  by 
appropriate  legislation,  the  reserved  power  of  the  States  is  plenary,  and  its  exer- 
cise in  good  faith  can  not  be  made  the  subject  of  review  by  this  court.  Gilman  v. 

'This  provision  was  repeated  in  the  act  of  August  5, 1880  (24  Stat.  L.,"335). 

aPollard  v.  Hagan,  3  How.,  212;  Barney  v.  Keokuk,  94  IT.  S.,  337;  Gilman  v. 
Philad.,  3  Wall.,  713;  South  Carolina  v.  Georgia,  93  U.  S.,  4;  6  Opin.  Att.  Gen., 
172;  7  ibid.,  314;  10  ibid.,  479. 

6  Wisconsin  v.  Duluth,  96  TJ.  S.,  379. 


282  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

of  Eepresentatives,  and  are  hereby  ordered  to  be  printed 

when  so  made.1     Sec.  7,  act  of  July  13, 1892  (27  Stat.  L.,  115). 

supplemental     gQ3.  That  after  the  regular  or  formal  report    on  any 

reports     prohib-  J 

ited unless  called  examination,  survey,  project,  or  work  under  way  or  pro- 

for    by    concur- 

rentresoiutionof  posed  is  submitted,  no  supplemental  or  additional  report 
June  3, 1896,  v.  or  estimate  for  the  same  fiscal  year  shall  be  made  unless 
ordered  by  a  concurrent  resolution  of  Congress.    The  Gov- 
ernment shall  not  be  deemed  to  have  entered  upon  any 
project  for  the  improvement  of  any  waterway  or  harbor 
mentioned  in  this  Act  until  funds  for  the  commencement 
of  the  proposed  work  shall  have  been  actually  appropriated 
by  law.     Sec.  4,  act  of  June  3, 1896  (29  Stat.  L.,  235)? 
to^f  slbmitSd     804,  The   Secretary  of  War  is  hereby  authorized  and 
fhe^fetary1^  directed  to  cause  to  be  made  and  transmitted  to  the  first 
Wslc.  6,  June  a,  session  of  tne  Fifty-fifth  Congress  a  compilation  giving  a 
1896,  v.29,  P.  235.  complete  list  of  all  the  preliminary  examinations  that  have 
heretofore  been  made,  date  of  report,  with  a  statement  as 
to  each,  whether  favorable  or  unfavorable  for  survey;  also 
a  complete  list  of  all  surveys  that  have  heretofore  been 
made,  with  a  statement  as  to  each,  whether  favorable  for 
adoption  or  unfavorable,  and  date  of  report,  amount  recom- 
mended for  completion  and  amount  recommended  for  each 
to  be  expended  during  the  fiscal  year  beginning  July  first, 
eighteen  hundred  and  ninety-eight,  by  both  the  Chief  of 
Engineers  and  the  engineer  in  charge;  also  a  complete  list 
of  all  projects  now  under  construction  or  maintenance, 
together  with  the  year  when   adopted,  and  if  modified, 
when,  the  total  amount  expended  on  each  project  and  esti- 

Philadelphia,  3  Wall.,  713.  Th«  power  to  construct  works  of  river  and  harbor  im- 
provement in  the  navigable  waters  of  the  United  States,  as  an  incident  of  the  power 
to  regulate  commerce  "covering  as  it  does  a  wide  field,  and  embracing  a  great 
variety  of  subjects,  some  of  which  will  call  for  uniform  rules  and  national  legisla- 
tion, while  others  can  best  be  regulated  by  rules  suggested  by  the  varying  circum- 


shall  be  deemed  necessary,  by  either  general  or  special  laws.  It  may  regulate  all 
bridges  over  navigable  waters,  remove  offending  bridges,  ai.d  punish  those  who 
shall  thereafter  erect  them.  Ibid.  It  is  for  Congress  to  determine  when  its  full 
power  shall  be  brought  into  activity,  and  as  to  the  regulations  and  sanctions  which 
shall  be  provided.  U.  S.  v.  New  Bedford  Bridge,  1  Woodbury  and  Miuot,  420,  421; 
U.  S.  v.  Cornet,  12  Pet.,  72;  N.  T.  v.  Milne.  11  Pet.,  102,  155;  The  Wheeling  Bridge 
Cases,  13  How.,  518;  18  ibid.,  521. 

^  A  State  has  power  to  change  the  channels  of  rivers  within  the  State  for  purposes  of 
internal  improvement.  Withers  v.  Buckley,  20  How.,  84;  So.  Car.  v,  Ga.,  93  U.  S.,  4.  In 
the  absence  of  legislation  by  Congress,  a  State  statute  authorizing  the  erection  of  a 
dam  across  a  navigable  river  which  is  wholly  within  its  limits  is  not  unconstitutional. 
Wilson  v.  Blackbird  Creek  Marsh  Co.,  2  Pet.,  245;  Pound  v.  Turck,  95  U.  S.,  459. 


The  Chicago  River  is  navigable  and  under  control  of  Congress ;  but',  until  that 
body  acts  the  State  of  Illinois  has  authority,  and  may  vest  in  '  *        "       "  ~"  ' 
jurisdiction  over  the  construction  of  a  bridge  within  the  citv  limits,    ^scanaba  do. 


in  the  city  of  Chicago 


v.  Chicago,  107  U.  S.,  678.  The  State  of  Michigan  authorized  the  improvement  of  a 
river  wholly  within  that  State,  and  the  exaction  of  tolls  for  the  use  of  the  river  so 
improved.  Held,  that  the  statute  did  not  impair  the  contract  contained  in  the 
ordinance  of  1787,  giving  the  people  the  right  to  use  the  waters  leading  into  the  St. 
Lawrence  free  of  duty,  tax,  or  impost.  Sands  v.  Manistee  Eiver  Imp.  Co.,  123  U.  S., 
288;  Ruggles ,v.  The  Same,  ibid.,  297. 

i  This  provision  was  repeated  in  theactof  August?.  1894  (28  Stat.  L.,  369).  See,  also, 
for  a  similar  provision,  the  acts  of  August  2,  1882  (22  Stat.  L.,  213) ;  July  5, 1884  (23 
Stat.  L.,  153) ;  August  5, 1886  (24  Stat.  L.,  335),  August  11, 1888  (25  Stat.  L.,  433) ;  Sep- 
—  ;  August  17, 1894  (28  Stat.  L.,  372),  and  June  3, 1896 


2  See  also,  for  a  similar  provision,  section  14  of  the  act  of  August  1,  1888  (25  Stat. 
L.,  433),  and  section  13  of  the  act  of  August  17, 1894  (28  Stat.  L.,  371) 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


283 


mate  of  amount  required  to  complete  the  same,  and  amount 
recommended  by  the  Chief  of  Engineers  and  by  the  engi- 
neer in  charge  to  be  expended  during  the  fiscal  year  begin- 
ning July  first,  eighteen  hundred  and  ninety- eight,  the 
amount  appropriated  for  each  project  by  this  Act,  making 
reference  to  the  report  of  the  Chief  of  Engineers  where 
report  of  each  project  is  given,  together  with  a  statement 
containing  the  amount  of  the  unexpended  balance  to  the 
credit  of  each  project  July  first,  eighteen  hundred  and 
ninety-seven,  whether  under  construction,  work  suspended, 
or  appropriation  made  and  work  not  commenced ;  also  the 
total  amounts  appropriated  heretofore  for  the  improvement 
and  maintenance  of  the  rivers  and  the  total  amounts  here- 
tofore appropriated  for  the  improvement  and  maintenance 
of  harbors  in  each  river  and  harbor  act;  also  the  total 
amount  of  appropriation  by  States  for  the  improvement  of 
rivers  and  harbors.  Sec.  6',  act  of  June  ,5,  1896  (29  Stat. 
£.,  235). 

805.  That  the  Secretary  of  War  is  directed  to  cause  to  be 
prepared  a  compilation  of  all  general  laws  that  have  beeii1f|Pr.ov«]ne?*« 

etc.,  of  navigable 

enacted  Irom  time  to  time  by  Congress  for  the  maintenance,  waters  to  be  Pre- 
protection,  and  preservation  of  the  navigable  waters  of  the  Pasec.'  2,  June  3, 
United  States  which  are  now  in  force,  and  to  submit  the 
same  to  Congress  at  its  session  in  December  next,  together 
with  such  recommendation  as  to  revision,  emendation,  or 
enlargement  of  the  said  laws  as,  in  his  judgment,  will  be 
advantageous  to  the  public  interest.     Sec.  2,  act  of  June  3, 
1896  (29  Stat.  L.,  234). 

CONTRACTS  AND  PURCHASES.1 


Par. 

806.  Application     of     appropria- 

tions; contracts. 

807.  Two  or  more  works  in  one 

contract. 

808.  Rejection  of  bids. 

809.  Material    for    improvements 

may  be  taken. 


Par. 

810.  Condemnation  of  lands. 

811.  Contracts  for  completed  work 

authorized. 

812.  Limitation  on  payments  upon 

works  constructed  on  the 
continuous-contract  s  y  s  - 
tern. 


806.  That  it  shall  be  the  duty  of  the  Secretary  of  War  to    Application  of 

,  .          ,  .        appropriations. 

apply  the  money  herein  and  hereafter  appropriated  for  im-  sec.  s,  Aug.  11, 
provernents  of  rivers  and  harbors,  other  than  surveys,  esti- 
mates and  gaugings,  in  carrying  on  the  various  works,  by 
contract  or  otherwise,  as  may  be  most  economical  and  ad- 
vantageous to  the  Government.  Where  said  works  are 
done  by  contract,  such  contract  shall  be  made  after  suffi- 
cient public  advertisement  for  proposals,  in  such  manner 

JSee  also  the  chapter  entitled  CONTRACTS  AND  PURCHASES,  -which  regulates  the 
procurement  of  all  supplies  and  services  not  expressly  excepted  therefrom  by  statute, 
aain  the  case  of  purchases  of  supplies  for  works  of  river  and  harbor  improvement. 


Contracts. 


284  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

and  form  as  the  Secretary. of  War  shall  prescribe;  and 
such  contracts  shall  be  made  with  the  lowest  responsible 
bidders,  accompanied  by  such  securities  as  the  Secretary 
of  War  shall  require,  conditioned  for  the  faithful  prosecu- 
tion and  completion  of  the  work  according  to  such  con- 
tract.1    Sec.  3,  act  of  August  11,  1888  (25  Stat.  L.,  423}. 
worths  m°ar  be°in     ®07.  That  nothing  contained  in  section  thirty-seven  hun- 
one  contract,  etc.  dred  and  seventeen  of  the  Revised  Statutes  of  the  United 

li.  o.,  86C.u7l7, 

P.  734,  modified.  States,  nor  in  section  three  of  the  river  and  harbor  act  of 

"V  25  D  423 

sec.  2,  s'ept.' 19,  August  eleventh,  eighteen  hundred  and  eighty- eight,  shall 
be  so  construed  as  to  prohibit  or  prevent  the  cumulation 
of  two  or  more  works  of  river  and  harbor  improvement  in 
the  same  proposal  and  contract,  where  such  works  are  sit- 
uated in  the  same  region  and  of  the  same  kind  or  char- 
acter.2    Sec.  2,  act  of  September  19,  1890  (26  Stat.  L.,  452). 
Rejection    of     808.  That  in  cases  where  authority  has  been  granted  to 
bliec.  2,  July  is,  the  Secretary  of  War  in  this  act  to  make  contracts  for  the 
1892,  v.  27,  p.  no.  completion  of  certain  works  of  river  and  harbor  improve- 
ment, he  is  hereby  authorized  to  reject  any  bids  not  in  his 
opinion  advantageous  to  the  Government,  and  to  issue 
new  proposals.     Sec.  2,  act  of  July  13,  1892  (27  Stat.  L.,  110). 
.  Material    for     g09,  That  whenever,  in  the  prosecution  and  maintenance 

jmpro  v  e  m  e  n  t  s  x 

may  be  taken.     of  the  improvement  of  the  Mississippi  River  and  other 

July  5,  1884,  v. 

23,  p.  147.  rivers,  harbors,  and  public  works  for  which  appropriations 

are  herein  made  it  becomes  necessary  or  proper,  in  the 
judgment  of  the  Secretary  of  War,  to  take  possession  of 
material  found  on  bars  and  islands  within  the  river  banks, 
or  other  material  lying  adjacent  or  near  to  the  line  of  any 
of  said  works  and  needful  for  their  prosecution  or  mainte- 
nance, the  officers  in  charge  of  said  works  may,  when  they 

1  The  appropriation  of  money  for  the  improvement  of  a  harbor  on  a  navigable 
'     river  confers  discretionary  power  upon  the  Secretary  of  War  as  to  the  means  by 

which  such  improvement  shall  be  effected.  So.  Car.  v.  Ga.,  93  U.  S.,  4.  The  opera- 
tions of  the  Government  in  this  regard  have  been  conducted  by  the  Bureau  of  Engi- 
neering, as  partof  the  War  Department,  to  which  Congress  has  con  tided  the  execution 
of  its  wishes  in  all  those  matters.  *  *  *  It  can  not  be  necessary  to  say  that,  when 
a  public  work  of  this  character  has  been  inaugurated  or  adopted  by  Congress  and  its 
management  placed  in  control  of  its  officers,  there  exists  no  right  in  any  other  branch 
of  the  Government  to  forbid  the  work  or  to  require  the  undoing  of  what  has  been 
done  or  to  prescribe  the  manner  in  which  it  shall  be  conducted.  Wisconsin  v.  Du- 
lutb,  96TJ.D.,  379.  For  these  purposes  Congress  possesses  all  the  powers  which 
existed  in  the  States  before  the  adoption  of  the  Constitution,  and  which  have  always 
existed  in  the  Parliament  of  England.  Gilman  v.  Philadelphia,  3  Wall.,  713. 

Where  an  officer  or  agent,  charged  under  the  Secretary  of  War  and  the  Chief  of 
Engineers  with  the  duty  of  making  purchases  out  of  the  appropriations  for  river  and 
harbor  improvements,  certifies  that  the  prices  paid  were  the  lowest  market  rates 
and  the  mode  of  expenditure  adopted  the  most  economical  and  advantageous  to  the 
Government,  and  the  Chief  of  Engineers  approves  his  account  so  far  as  relates  to 
the  necessity  and  expediency  of  the  expenditures  and  the  prices  paid,  it  is  not 
within  the  province  ot  the  accounting  officers  to  call  in  question  the  degree  of  wia- 
dom  or  skill  which  maj^  have  accompanied  the  exercise  of  administrative  discretion. 
3  Compt.,  Dec.  22.  It  is  the  duty  of  the  proper  officers  of  the  War  Department  to 
determine  when  such  an  emergency  exists  requiring  immediate  delivery  of  property 
necessary  for  river  and  harbor  improvements  as  will  authorize  its  purchase  in  open 
market  without  advertisement.  Discretionary  power  in  this  respect  is  vested  by 
law  in  the  War  Department,  and  the  exercise  of  such  discretion  is  not  properly  re- 
viewable  by  the  accounting  officers.  3  Dig.  Compt.  Dec.,  288. 

2  This  provision  was  repeated  m  the  act  of  August  5,  1886  (24  Stat.  L.,  330). 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  285 

cannot  agree  as  to  the  price  with,  the  owners  thereof,  in 
the  name  of  the  United  States  take  possession  of  and  use 
the  same  after  first  having  paid  or  secured  to  be  paid  the 
value  thereof,  which  may  have  been  ascertained  in  the 
mode  provided  by  the  laws  of  the  State  wherein  such  prop- 
erty or  material  lies:  Provided,  however.  That  when  the 
owner  of  such  property  or  material  shall  fix  a  price  for  the 
same  which  in  the  opinion  of  said  officer  in  charge,  shall 
be  reasonable,  he  may  take  the  same  at  such  price  without 
further  delay.  The  Department  of  Justice  shall  represent 
the  interests  of  the  United  States  in  the  legal  proceedings 
under  this  act.  Act  of  July  5,  1884  (23  Stat.  L.,  147). 

PURCHASE   OF  LANDS. 

810.  That  the  Secretary  of  War  mav  cause  proceedings    Condemnation 

'    of  lands  for  river 

to  be  instituted,  in  the  name  of  the  United  States,  in  any  and  harbor  im- 

,,         .          ••!•-•  f  i  •  /.       .  i  provements. 

court  having  jurisdiction  of  such  proceedings,  for  the  ac-  p Apr. 24, isss,  v. 
quirement  by  condemnation  of  any  land,  right  of  way,  or  J>p'9 
material  needed  to  enable  him  to  maintain,  operate  or  pros- 
ecute works  for  the  improvement  of  rivers  and  harbors  for 
which  provision  has  been  made  by  law  5  such  proceedings 
to  be  prosecuted  in  accordance  with  the  laws  relating  to 
suits  for  the  condemnation  of  property  of  the  States 
wherein  the  proceedings  may  be  instituted:  Provided,  how- 
ever, That  when  the  owner  of  such  land,  right  of  way,  or 
material  shall  fix  a  price  for  the  same,  which  in  the  opinion 
of  the  Secretary  of  War,  shall  be  reasonable,  he  may  pur- 
chase the  same  at  such  price  without  further  delay:  And 
provided  further,  That  the  Secretary  of  War  is  hereby  au- 
thorized to  accept  donations  of  lands  or  materials  required 
for  the  maintenance  or  prosecution  of  such  works.1  Act  of 
April  24,  1888  (25  Stat.  L.,  94). 

THE   CONTINUOUS   CONTRACT   SYSTEM. 

811.  Constructing  harbor  of  refuge,  Delaware  Bay,  Dela-    contracts   for 
ware,  in  accordance  with  plans  submitted  by  the  Chief  of  authorized. w' 
Engineers  January  twenty- ninth,  eighteen  hundred  and  29Jp ."o?3' 1896' v' 
ninety-two,  five  thousand  dollars  :•  Provided,  That  contracts 

may  be  entered  into  by  the  Secretary  of  War  for  such 

'For  general  provisions  in  respect  to  the  acquisition  of  land  by  the  United  States, 
see  the  act  of  August  1, 1888,  and  the  chapters  entitled  THE  PUBLIC  LANDS  and  THE 
DEPARTMENT  OF  JUSTICE.  The  acts  of  June  14,  1880  (21  Stat.  L.,  193),  and  March  3, 
1881  (ibid.,  482),  authorized  the  expenditure  of  funds  in  the  acquisition  of  sites  for 
river  and  harbor  improvements,  by  voluntary  purchase  or  condemnation,  under  the 
direction  of  the  Secretary  of  War,  with  the  proviso  "that  if  the  owners  of  such 
lands  shall  refuse  to  sell  them  at  reasonable  prices,  then  the  prices  to  be  paid  shall  be 
determined  and  the  title  and  jurisdiction  procured  in  the  manner  prescribed  by  the 
laws  of  the  State  in  which  such  lands  or  sites  are  situated." 


286  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

material  and  work  as  may  be  necessary  to  complete  said 
harbor  of  refuge,  to  be  paid  for  as  appropriations  may 
from  time  to  time  be  made  by  law,  not  to  exceed  in  the 
aggregate  four  million  six  hundred  and  sixty  thousand 
dollars,  exclusive  of  the  amount  herein  appropriated: 
Provided  further,  That  in  making  such  contracts,  the  Sec- 
retary of  War  shall  nob  obligate  the  Government  to  pay 
in  any  one  fiscal  year,  beginning  July  first,  eighteen  hun- 
dred and  ninety-seven,  more  than  twenty-five  per  centum 
of  the  whole  amount  authorized  to  be  expended. 

Improving  harbor  at  Wilmington,  and  Christiana  Eiver, 
Delaware:  Continuing  improvement,  in  accordance  with 
the  modified  project,  twenty  thousand  dollars:  Provided 
moreover,  That  of  which  amount  five  thousand  dollars  may, 
in  the  discretion  of  the  Secretary  of  War,  be  expended 
during  the  year  eighteen  hundred  and  ninety-six  in 
improving  the  channel  between  Churchman's  Bridge  and 
Snalley's  Bridge  on  said  river,  of  which  sum  one-half  shall 
be  expended  below  and  the  other  half  above  the  draw- 
bridge at  Christiana  village:  And  provided  further,  That 
contracts  may  be  entered  into  by  the  Secretary  of  War 
for  such  materials  and  work  as  may  be  necessary  to  com 
plete  the  project  of  improvement,  not  including  estimate 
for  flushing  basin  and  extension  of  jetty,  to  be  paid  for  as 
appropriations  may  from  time  to  time  be  made  by  law,  not 
to  exceed  m  the  aggregate  two  hundred  and  twenty  five 
thousand  eight  hundred  and  forty-six  dollars.1  Act  of 
June  3,  1896  (29  Stat.  L.,  207}. 

pay^ents^upon"     812   Thafc  under  tbe  authority  to  make   contracts  for 
works  construct-  materials  and  work,  under  the  provisions  of  this  Act,  in 

ed  under  the  con- 
tinuous-contract addition  to  the  sums  appropriated  herein,  the  Secretary  of 

sec.  5,  June  3,  War  shall  not  obligate  the  Government  to  pay,  in  any  one 
'  fiscal  year,  beginning  July  first,  eighteen  hundred  and 
ninety- seven,  more  than  four  hundred  thousand  dollars 
upon  the  said  contracts  for  any  one  of  the  works  herein 
placed  under  the  contract  system,  except  as  herein  other- 
wise specifically  authorized  to  do :  Provided  any  part  of  the 
annual  allotment  herein  provided  for,  not  earned  and  paid 
for  material  furnished  or'work  done  in  one  fiscal  year,  may 
be  paid  for  material  furnished  and  work  done  under  the 
contracts  in  any  subsequent  fiscal  year :  Provided  further, 
That  nothing  herein  contained  shall  be  so  construed  as  to 
prevent  the  Secretary  of  War  from  making  contracts  for 

1  The  above  statute  is  an  example  of  a  work  of  river  and  harbor  improvement 
authorized  to  be  carried  on  under  the  continuous-contract  system.  This  system  has 
been  applied  to  such  constructions  in  the  several  acts  of  appropriation  since  that  of 
September  19, 1890  (26  Stat.  L.,  426) . 


THE    MILITARY   LAWS   OP   THE    UNITED   STATES. 


287 


the  whole  or  any  part  of  the  works  placed  under  the  con- 
tract system  in  such  manner  as  may  be  deemed  best, 
payments,  however,  to  be  made  as  stated  in  .this  section. 
Sec.  5,  act  of  June  3,  1896  (29  Stat.  L.,  235). 

OPERATION    OF   CANALS    AND    OTHER  WORKS  OF 
IMPROVEMENT. 


Par. 

813.  Tolls  not  to  be  levied  or  col 

lected  on  canals. 

814.  Use  of  canals,  etc.,  to  be  regu- 

lated by  Secretary  of  War. 


Par. 


815.  Regulations  to  be  posted. 


813,  That  no  tolls  or  operating  charges  whatsoever  shall    Toils  not  to 

,      ,       .     ,  ,  111  be  levied  or  col- 

be  levied  or  collected  upon  any  vessel  or  vessels,  dredges,  or  lected  on  canals. 

other  passing  water  craft  through  any  canal  or  other  work6  s'ec.4,  July  5, 

for  the  improvement  of  navigation  belonging  to  the  United  1884)Vt  23'P-147- 

States;  and  for  the  purpose  of  preserving  and  continuing 

the  use  and  navigation  of  said  canals,  rivers,  and  other  pub- 

lic works  without  interruption,  the  Secretary  of  War,  upon 

the  application  of  the  chief  engineer  in  charge  of  said 

works,  is  hereby  authorized  to  draw  his  warrant  or  requisi- 

tion from  time  to  time  upon  the  Secretary  of  the  Treasury 

to  pay  the  actual  expenses  of  operating  and  keeping  said    Payments  for 

actual  expenses 

works  in  repair,  which  warrants  or  requisitions  shall  be  of  operation  and 


paid  by  the  Secretary  of  the  Treasury,  out  of  any  money  in 
the  Treasury  not  otherwise  appropriated:  Provided,  how- 
ever, That  an  itemized  statement  of  said  expenses  shall 
accompany  the  annual  report  of  the  Chief  of  Engineers.1 
814.  That  it  shall  be  the  duty  of  the  Secretary  of  War  to  use  of  canals, 

...  ,  rt  ,  etc.,  to  be  regu- 

prescribe  such  rules  and  regulations  for  the  use,  admims-  lated  by  secre- 
tration,  and  navigation  of  any  or  all  canals  and  similar  t&sec°  4,  Aug.  IT, 
works  of  navigation  that  now  are,  or  that  hereafter  may  be,  1894'  Vl28)p>36' 
owned,  operated,  or  maintained  by  the  United  States  as  in 
his  judgment  the  public  necessity  may  require.2 

1  The  effect  of  this  statute  is  to  repeal  so  much  of  sections  5245,  5247  5249.  and  5255, 
Revised  Statutes,  as  authorizes  the  imposition  of  tolls  or  other  charges  for  the  use 
of  canals  or  other  works  of  river  and  harbor  improvement  erected  at  the  expense  of 
the  United  States.  Section  5255  vested  the  management  of  the  Louisville  and  Port- 
laud  Canal  in  the  Secretary  of  the  Treasury  at  reduced  rates  of  toll.  The  tolls  were 
still  further  reduced  by  the  act  of  May  11,  1874  (18  Stat.  L.,  43),  and  the  control  of 
the  canal  transferred  to  the  Secretary  of  War,  who,  by  the  act  of  July  5,  1884  (23 
Stat.  L.,  148),  was  given  authority  to  make,  post,  and  enforce  regulations  for  the  use 
of  the  canal,  and  this  legislation  was  repeated  in  the  act  of  September  30,  1888  (25 
Stat.  L.,  497).  The  acts  of  May  18,  1880  (21  Stat.  L.,  141)  and  August  2,  1882  (22  Stat. 
L.,  209),  contained  a  provision  that  no  tolls  or  operating  charges  should  be  levied 
upon  or  collected  from  vessels,  dredges,  or  other  water  craft  passing  through  any 
canal  or  other  improvement  of  navigation  belonging  to  the  United  States. 

:  Section  7  of  the  act  of  July  5,  1884  (23  Stat.  L  .,  148),  authorized  the  Secretary  of 
War  to  prescribe  rules  and  regulations  for  the  use  and  administration  of  the  JDes 
Moines  Rapids  Canal,  the  Saint  Marys  Falls  Canal,  and  the  Louisville  and  Portland 
Canal.  Section  14  of  the  act  of  September  19,  1890  (27  Stat.  L.,  455),  provides  that 
the  dry  dock  constructed  at  the  Des  Moines  Rapids  Canal  shall  constitute  an  inte- 
grant part  of  the  said  canal,  and  makes  the  provisions  of  section  7.  above  cited,  appli- 
cable to  the  same.  See,  also,  Dig.  J.  A.  Gen.,  534,  par.  17, 


288 


THE   MILITARY    LAWS   OF    THE    UNITED    STATES. 


Regulations  to  g!5,  Such  rules  and  regulations  shall  be  posted,  in  con- 
spicuous and  appropriate  places,  for  the  information  of  the 
public;  and  every  person  and  every  corporation  which  shall 
knowingly  and  willfully  violate  such  rules  and  regulations 
shall  be  deemed  guilty  of  a  misdemeanor  and,  on  conviction 
thereof  in  any  district  court  in  the  United  States  within 
whose  territorial  jurisdiction  such  offense  may  have  been 
committed,  shall  be  punished  by  a  fine  not  exceeding  five 
hundred  dollars,  or  by  imprisonment  (in  the  case  of  a  natu- 
ral person)  not  exceeding  six  months,  in  the  discretion  of 
the  court.1  Sec.  4,  act  of  August  17, 1894  (28  Stat.  L.,362). 

BRIDGES  OVER  THE  NAVIGABLE  WATERS  OF  THE  UNITED 

STATES. 


Par. 

816.  Deflection    of    currents    by 

piers,  etc. 

817.  Obstructions    to    navigation 

by  bridges. 


Par. 

818.  Penalty  for  default  in  making 

alterations,  etc. 

819.  Drawbridges ;  regulations  for 

use. 


816.  That  whenever  complaint  shall  be  made  to  the  Secre- 

Deflection  of 

currents  by  tary  of  War  that  by  reason  of  the  placing  in  any  navigable 
sec.  2,  Aug.  11,  waters  of  the  United  States  of  any  bridge  pier  or  abut- 
ment,  the  current  of  such  waters  has  been  so  deflected  from 
its  natural  course  as  to  cause  by  producing  caving  of  banks 
or  otherwise  serious  damage  or  danger  to  property,  it  shall 
be  his  duty  to  make  inquiry,  and  if  it  shall  be  ascertained 
that  the  complaint  is  well  founded,  he  shall  cause  the  owners 
or  persons  operating  such  bridge  to  repair  such  damage  or 
prevent  such  danger  to  property  by  such  means  as  he  shall 
indicate  and  within  such  time  as  he  may  name,  and  in 
default  thereof  the  owners  or  persons  operating  such  bridge 
shall  be  liable  in  any  court  of  competent  jurisdiction  to  the 
persons  injured  in  a  sum  double  the  amount  of  said  injury: 
Provided,  however,  That  nothing  herein  contained  shall  be 
construed  so  as  to  affect  any  rights  of  action  which  may 
exist  at  the  time  of  the  passage  of  this  act.2 

817.  That  whenever  the  Secretary  of  War  shall  have  good 

Obstructions  IT  j_i  -i          -i  11-1 

to  navigation  by  reason  to  believe  that  any  railroad  or  other  bridge  now 
brsete9,'  Aug.  11,  constructed,  or  which  may  hereafter  be  constructed  over 
8^8'Z'fep^.4i9,;any  of  tae  navigable  water-ways  of  the  United  States  is 
1890,  v.26,  p.  453'.  an  unreasonable  obstruction  to  the  free  navigation  of  such 


1  In  view  of  the  decision  of  the  Supreme  Court  in  the  case  of  The  United  States  v. 
Eaton  (144  U.  S.,  677),  it  may  be  doubted  whether  regulations  prepared  iu  conformity 
to  this  statute  could  have  the  penal  character  which  it  undertakes  to  confer.    In 
Morrill  v.  Jones  (106  U.  S.,  466)  it  was  held  that  the  Secretary  of  the  Treasury  could 
not  alter  or  amend  a  statute  by  executive  regulation:  "  Muchmoredoes  this  principle 
apply  to  a  case  where  it  is  sought  substantially  to  prescribe  a  criminal  offense  by  the 
regulation  of  a  Department."    For  a  contrary  opinion,  however,  see  U.  S.  v.  Ormsbee, 
74  Fed.  Rep.,  207. 

2  In  the  case  of  the  United  States  v.  Rider  et  al.  (50  Fed.  Rep.,  406)  this  section  was 
held  to  be  unconstitutional  upon  the  ground  that  the  powers  therein  conferred  upon 
the  Secretary  of  War  were,  by  the  Federal  Constitution,  exclusively  vested  in  Con- 
gress.   See,  also,  Fields  Clark,  143  U.  S.,  649, 692 ;  U.  S.  v.  Eaton,  144  U.  S.,  627,  and  note 
1  to  paragraph  815,  ante,-  U.  S.  v.  Keokuk  and  Hamilton  Bridge  Co.,  45  Fed..  Rep.,  17& 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  289 

waters  on  account  of  insufficient  height,  width  of  span,  or 
otherwise,  or  where  there  is  difficulty  in  passing  the  draw- 
opening  or  the  draw-span  of  such  bridge  by  rafts,  steam- 
boats, or  other  water-craft,  it  shall  be  the  duty  of  the  said 
Secretary,  first  giving  the  parties  reasonable  opportunity 
to  be  heard,  to  give  notice  to  the  persons  or  corporations 
owning  or  controlling  such  bridge  so  to  alter  the  same  as 
to  render  navigation  through  or  under  it  reasonably 
free,  easy,  and  unobstructed ;  and  in  giving  such  notice 
he  shall  specify  the  changes  required  to  be  made,  and  shall 
prescribe  in  each  case  a  reasonable  time  in  which  to  make 
them.  If  at  the  end  of  such  time  the  alteration  has  not 
been  made,  the  Secretary  of  War  shall  forthwith  notify 
the  United  States  district  attorney  for  the  district  in 
which  such  bridge  is  situated,  to  the  end  that  the  criminal 
proceedings  mentioned  in  the  succeeding  section  may 
be  taken.1  Sec.  4,  act  of  September  19,  1890  (26  Stat.  L., 
453). 

818.  That  if  the  persons,  corporation,  or  association  own-  ,  Penalty  for 

default  in  mak- 
ing or  controlling  any  railroad  or  other  bridge  shall,  after  ing   alterations, 

receiving  notice  to  that  effect  as  hereinbefore  required  from  sec.  10,  Aug. 
the  Secretary  of  War  and  within  the  time  prescribed  by  425 ;  sec.\  ibid' 
him,  willfully  fail  or  refuse  to  remove  the  same,  or  to  com-  i89o,°v. 
ply  with  the  lawful  order  of  the  Secretary  of  War  in  the 
premises  such  persons,  corporation  or  association  shall  be 
deemed  guilty  of  a  misdemeanor  and,  on  conviction  thereof, 
shall  be  punished  by  a  fine  not  exceeding  five  thousand 
dollars,  and  every  month  such  persons,  corporation,  or 
association  shall  remain  in  default  in  respect  to  the  re- 
moval or  alteration  of  such  bridge  shall  be  deemed  a  new 
offense,  and  subject  the  persons,  corporation,  or  asso- 
ciation so  offending  to  the  penalties  above  prescribed.1 
Sec.  5,  act  of  September  19.  1890  (26  Stat.  £.,  453). 

819.  That  it  shall  be  the  duty  of  all  persons  owning, 
operating,  and  tending  the  drawbridges  now  built,  or  which  use.    5  Au  .  17 
may  hereafter  be  built  across  the  navigable  rivers  and  i894e,%.  28,  p? 3621. 
other  waters  of  the  United  States,  to  open,  or  cause  to  be 

opened,  the  draws  of  such  bridges  under  such  rules  and 
regulations  as  in  the  opinion  of  the  Secretary  of  War  the 
public  interests  require  to  govern  the  opening  of  draw- 
bridges for  the  passage  of  vessels  and  other  water-crafts, 
and  such  rules  and  regulations,  when  so  made  and  pub- 
lished, shall  have  the  force  of  law.  Every  such  person 


JIn  the  case  of  the  United  States  v.  Eider  et  al.  (50  Fed.  Rep.,  406)  these  sections 
were  held  to  be  unconstitutional  upon  the  ground  that  the  powers  therein  conferred 
upon  the  Secretary  of  War  were,  by  the  Federal  Constitution,  exclusively  vested  in 
Congress.  See,  also,  U.  S.  v.  Eaton,  144  U.  S.,  627,  and  note  2  to  paragraph  816,  ante,- 
U.  S.  v.  Keokuk  and  Hamilton  Bridge  Co.,  45  Fed.  Rep.,  178. 

1919 19 


290 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


who  shall  willfully  fail  or  refuse  to  open,  or  cause  to  be 
opened,  the  draw  of  any  such  bridge  for  the  passage  of  a 
boat  or  boats,  or  who  shall  unreasonably  delay  the  opening 
of  said  draw  after  reasonable  signal  shall  have  been  given, 
as  provided  in  such  regulations,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  on  conviction  thereof  shall  be  pun- 
ished by  a  fine  of  not  more  than  two  thousand  dollars  nor 
less  than  one  thousand  dollars,  or  by  imprisonment  (in  the 
case  of  a  natural  person)  for  not  exceeding  one  year,  or  by 
both  such  fine  and  imprisonment,  in  the  discretion  of  the 
court :  Provided,  That  the  proper  action  to  enforce  the  pro- 
visions of  this  section  may  be  commenced  before  any  com- 
missioner, judge,  or  court  of  the  United  States,  and  such 
commissioner,  judge,  or  court  shall  proceed  in  respect 
thereto  as  authorized  by  law  in  case  of  crimes  against  the 
United  States :  Provided  further,  That  whenever,  in  the 
opinion  of  the  Secretary  of  War,  the  public  interests 
require  it,  he  may  make  rules  and  regulations  to  govern 
the  opening  of  drawbridges  for  the  passage  of  vessels 
and  other  water-crafts,  and  such  rules  and  regulations, 
when  so  made  and  published,  shall  have  the  force  of  law, 
and  any  violation  thereof  shall  be  punished  as  herein- 
before provided.1  Sec.  5,  act  of  August  17,  1894  (28  Stat. 
L.j  362}. 

HARBOR  LINES. 


Par. 

822.  Obstructions  by  wharves,  etc. 


Par. 

820.  Harbor-lines   may  be  estab- 

lished. 

821.  Dredging  within  harbor  lines; 

wharves ;    construction    of 
bridges,  etc. 

820.  Where  it  is  made  manifest  to  the  Secretary  of  War 
that  the  establishment  of  harbor-lines  is  essential  to  the 
1886,^.24,^29 -preservation  and  protection  of  harbors,  he  may,  and  is 
1888,  v.' 25,  pg  424  thereby  authorized,  to  cause  such  lines  to  be  established, 
18&6,  v.  26^.455'.  beyond  which  no  piers,  wharves,  bulk -heads  or  other  works 
shall  be  extended  or  deposits  made,  except  under  such 
regulations  as  may  be  prescribed  from  time  to  time  by  him ; 
and  any  person  who  shall  willfully  violate  the  provisions 
of  this  section,  or  any  rule  or  regulation  made  by  the  Sec- 
retary of  War  in  pursuance  of  this  section,  shall  be  deemed 
guilty  of  a  misdeanor,  and,  on  conviction  thereof,  shall 

1  As  every  bridge  constructed  over  the  navigable  waters  of  the  United  States  con- 
stitutes an  obstruction  to  the  free  navigation  thereof,  and  as  the  Congress  is,  by  the 
Constitution,  made  the  exclusive  judge  of  the  extent  and  amount  of  the  obstruction 
that  shall  be  authorized  in  any  case,  that  body  reserves  to  itaelf  the  right  to  author- 
ize the  construction  of  bridges  over  such  waters.  The  nearest  approach  to  general 
legislation  on  this  subject  will  be  found  in  the  act  of  February  14,  1883  (22  Stat.  L., 
414),  authorizing  the  construction  of  bridges  across  the  Ohio  River. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  291 

be  punished  by  a  fine  not  exceeding  one  thousand  dollars, 
or  imprisonment  not  exceeding  one  year,  at  the  discretion 
of  the  court  for  each  offense.1  Sec.  12,  act  of  September  19, 
1890  (26  Stat.  L.,  455}. 

821.  That  no  money  appropriated  for  the  improvement  .  Dredging  with- 

j?  j  i_       u  j-i  •  i  p±  -iii  *n  harbor-lines. 

of  rivers  and  harbors  in  this  act  or  hereafter,  shall  be  ex-  Sec.  5,  July  13, 
pended  for  dredging  inside  of  harbor  lines  duly  established.  8  2>  Vt  27'  p'm' 
Sec.  5,  act  of  July  13,  1892  (27  Stat.  L.,  111}. 

822.  That  it  shall  not  be  lawful  to  build  any  wharf,  pier,    obstructions 
dolphin,  boom,  dam,  weir,  breakwater,  bulk-head,  jetty  or  bysJ??y  septfiS,' 
structure  of  any  kind  outside  established  harbor-lines,  orJS?'?,'^4^ 
in  any  navigable  waters  of  the  United  States  where  no  1892)  v>  27>  p*  m 
harbor-lines  are  or  may  be  established,  without  the  per- 

mission of  the  Secretary  of  War,  in  any  port,  roadstead, 

haven,  harbor,  navigable  river,   or  other  waters  of  the 

United  States,  in  such  manner  as  shall  obstruct  or  impair 

navigation,  commerce,  or  anchorage  of  said  waters  ;  and  it 

shall  not  be  lawful  hereafter  to  commence  the  construction   construction  of 

of  any  bridge,  bridge  draw,  bridge  piers  and  abutments,  del  lteateeiaw,un 

causeway,  or  other  works  over  or  in  any  port,  road,  road- 

stead, haven,  harbor,  navigable  river  or  navigable  waters 

of  the  United  States,  under  any  act  of  the  legislative 

assembly  of  any  State,  until  the  location  and  plan  of  such 

bridge  or  other  works  have  been  submitted  to  and  approved 

by  the  Secretary  of  War,  or  to  excavate  or  fill,  or  in  any    secretary  of 

manner  to  alter  or  modify  the  course,  location,  condition 


capacity  of  any  port,  roadstead,  haven,  harbor,  harbor  of  ret-  potet?.',  'for' 

uge,  or  inclosure  within  the  limits  of  any  breakwater,  or  of  °idden- 

the  channel  of  any  navigable  water  of  the  United  States, 

unless  approved  and  authorized  by  the  Secretary  of  War: 

Provided,  That  this  section  shall  not  apply  to  any  bridge,    Existing  law- 

bridge  draw,  bridge  piers  and  abutments  the  construction  except!  es'  etc'' 

of  which  has  been  heretofore  duly  authorized  by  law,  or  be 

so  construed  as  to  authorize  the  construction  of  any  bridge,    N°  authority 

draw  bridge,  bridge  piers  and  abutments  or  other  works  state1  if  w8  0*1  er 


under  an  act  of  the  legislature  of  any  State,  over  or  in  any  SfaSS 
stream,  port,  roadstead,  haven  or  harbor  or  other  navigable 
water  not  wholly  within  the  limits  of  such  State.1    Sec.  3, 
act  July  13,  1892  (27  Stat.  L.,  110). 

'See  note  1  to  paragraph  815,  supra.  See,  also,  Dig.  J.  A.  Gen.  532,  par.  10,  p.  533, 
paragraphs  11  and  12. 


292 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


INJURIES    TO   GOVERNMENT   WORKS;   OBSTRUCTIONS. 


Par. 

823.  Inj  uries  to  Government  works 

in  navigable  waters. 

824.  No  unlawful  obstructions  to 

be  created,  etc. 

825.  Enforcement. 

826.  Deposits  of  refuse,   etc.,   in 

navigable    waters    forbid- 
den. 

827.  Masters',   pilots',    and    engi- 

neers' licenses  revocable. 

828.  Libel  against  boats  making 

unlawful  deposit. 


Par. 

829.  Displacement  of  tide  waters 

by  piers,  etc. 

830.  Deposits    of   ballast,    stone, 

earth,  etc. ;  lawful  deposits. 

831.  Obstruction  by  sunken  ves- 

sels, craft,  etc. ;  removal. 

832.  Wrecks  to  be  removed  by  Sec- 

retary of  War. 

833.  Wrecks  may  be  sold  before 

raising  or  after  removal. 

834.  Fish  ways. 


injuries  to  GOT-     823.  That  it  shall  not  be  lawful  for  any  person  or  persons 

ernnient  works,  . 

etc.,in  navigable  to  take  possession  of  or  make  use  tor  any  exclusive  purpose, 


9,  sept.  19,  or  build  upon,  alter,  deface,  destroy,  injure,  obstruct,  or  in 
'  any  other  manner  impair  the  usefulness  of  any  sea-wall, 
bulk-head,  jetty,  dike,  levee,  wharf,  pier,  or  other  work  built 
by  the  United  States  ID  whole  or  in  part,  for  the  preserva- 
tion and  improvement  of  any  of  its  navigable  waters,  or  to 
prevent  floods,  or  as  boundary  marks,  tide-gauges,  survey- 
ing-stations, buoys,  or  other  established  marks,  nor  remove 
for  ballast  or  other  purposes  any  stone  or  other  material 
composing  such  works.  Sec.  9,  act  of  September  19,  1890 
(26  Stat.  L.,  454). 
NO  unlawful  824.  That  the  creation  of  any  obstruction,  not  affirma- 

obstructions     to  ..       ,  .1-111  .1  -11  -^         /? 

be  created  or  con-  tively  authorized  by  law,  to  the  navigable  capacity  of  any 
11  secdio,  ibid,  waters,  in  respect  of  which  the  United  States  has  jurisdic- 
tion, is  hereby  prohibited.  The  continuance  of  any  such 
obstruction,  except  bridges,  piers,  docks  and  wharves,  and 
similar  structures  erected  for  business  purposes,  whether 
heretofore  or  hereafter  created,  shall  constitute  an  offense 
and  each  week's  continuance  of  any  such  obstruction  shall 
be  deemed  a  separate  offense.  Every  person  and  every 
corporation  which  shall  be  guilty  of  creating  or  continuing 
any  such  unlawful  obstruction  in  this  act  mentioned,  or 
who  shall  violate  the  provisions  of  the  last  four  preceding 
sections  of  this  act,  shall  be  deemed  guilty  of  a  misde 
meanor,  and  on  convictioD  thereof  shall  be  punished  by  a 
fine  not  exceeding  five  thousand  dollars,  or  by  imprison- 
ment (in  the  case  of  a  natural  person)  not  exceeding  one 
year,  or  by  both  such  punishments,  in  the  discretion  of  the 
court,  the  creating  or  continuing  of  any  unlawful  obstruc- 
Preyention,  tion  in  this  act  mentioned  may  be  prevented  and  such  ob- 

etc.,    by  injunc- 

tion. struction  may  be  caused  to  be  removed  by  the  injunction 

of  any  circuit  court  exercising  jurisdiction  in  any  district 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  293 

in  which  such  obstruction  maybe  threatened  or  may  exist ; 
and  proper  proceedings  in  equity  to  this  end  may  be  insti-    Procedure. 
tuted  under  the  direction  of  the  Attorney- General  of  the 
United  States.     Sec.  10,  ibid. 

825.  That  it  shall  be  the  duty  of  officers  and  agents  hav-    f ^f6^*' 
ing  the  supervision,  on  the  part  of  the  United  States,  of  the 

works  in  progress  for  the  preservation  and  improvement  of 

said  navigable  waters,  and,  in  their  absence,  of  the  United 

States  collectors  of  customs  and  other  revenue  officers  to 

enforce  the  provisions  of  this  act  by  giving  information  to 

the  district  attorney  of  the  United  States  for  the  district 

in  which  any  violation  of  any  provision  of  this  act  shall 

have  been  committed:  Provided,  That  the  provisions  ofexImpted.Lake 

this  act  shall  not  apply  to  Torch  Lake,  Houghton  County, 

Michigan.     Sec.  11,  ibid. 

826.  That  it  shall  not  be  lawful  to  place,  discharge,  or  U8^X!8iin0na?i 
deposit,  by  any  process  or  in  any  manner,  ballast,  refuse,  gable  waters  for- 
dirt,  ashes,  cinders,  mud,  sand,  dredgings,  sludge,  acid,  or    Sec.  6,  Aug.  17, 
any  other  matter  of  any  kind  other  than  that  flowing  from 

streets,  sewers,  and  passing  therefrom  in  a  liquid  state,  in 
the  waters  of  any  harbor  or  river  of  the  United  States,  for 
the  improvement  of  which  money  has  been  appropriated 
by  Congress,  elsewhere  than  within  the  limits  denned  and 
permitted  by  the  Secretary  of  War;  neither  shall  it  be 
lawful  for  any  person  or  persons  to  move,  destroy,  or  injure  bidden- 
in  any  manner  whatever  any  sea-wall,  bulk-head,  jetty, 
dike,  levee,  wharf,  pier,  or  other  work  built  by  the  United 
States,  in  whole  or  in  part,  for  the  preservation  and  im- 
provement of  any  of  its  navigable  waters,  or  to  prevent 
floods,  or  as  boundary  marks,  tide  gauges,  surveying  sta- 
tions, buoys,  or  other  established  marks;  any  and  every 
such  act  is  made  a  misdemeanor,  and  every  person  know- 
ingly engaged  in  or  who  shall  knowingly  aid,  abet,  author- 
ize, or  instigate  a  violation  of  this  section  shall,  upon  con- 
viction, be  punishable  by  fine  or  imprisonment,  or  both,  Penalties. 
such  fine  to  be  not  less  than  two  hundred  and  fifty  dollars 
nor  more  than  twenty-five  hundred  dollars,  and  the  im- 
prisonment to  be  not  less  than  thirty  days  nor  more  than 
one  year,  either  or  both  united,  as  the  judge  before  whom 
conviction  is  obtained  shall  decide,  one-half  of  said  fine  to 
be  paid  to  the  person  or  persons  giving  information  which 
shall  lead  to  conviction  of  this  misdemeanor.1  Sec.  6,  act 
of  August  17, 1894  (28  Stat.  L.9  363). 

827.  That  any  and  every  master,  pilot,  and  engineer,  or  jjj^8^  •[ 
person  or  persons  acting  in  such  capacity,  respectively,  on  neers' '  licenses 
board  of  any  boat  or  vessel  who  may  willfully  injure 

1  See,  Dig.  J.  A.  Geu.,  533,  par.  14;  534,  par.  15. 


294  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

destroy  any  work  of  the  United  States  contemplated  in 
section  six  of  this  Act,  or  who  shall  knowingly  engage  in 
towing  any  scow,  boat,  or  vessel  loaded  with  any  such  pro- 
hibited matter  to  any  point  or  place  of  deposit  or  discharge 
in  any  harbor  contemplated  in  section  six  of  this  Act, 
elsewhere  than  within  the  limits  defined  and  permitted  by 
the  Secretary  of  War,  shall  be  deemed  guilty  of  a  violation 
of  this  Act  and  shall,  upon  conviction,  be  punishable  as 
hereinbefore  provided  for  offenses  in  violation  of  section 
six  of  this  Act,  and  shall  also  have  his  license  revoked  or 
suspended  for  a  term  to  be  fixed  by  the  judge  before  whom 
tried  and  convicted.  Sec.  7,  ibid. 

828<  An^  boat>  vesselj  scow  or  other  craft  used  or  em- 
ployed  in  violating  any  of  the  provisions  of  sections  six 
tions.  p* .  and  seven  of  this  Act  shall  be  liable  to  the  pecuniary  pen- 
alties imposed  thereby,  and  in  addition  thereto  to  the 
amount  of  the  damages  done  by  said  boat,  vessel,  scow,  or 
other  craft,  which  latter  sum  shall  be  placed  to  the  credit 
of  the  appropriation  for  the  improvement  of  the  harbor  in 
which  the  damage  occurred,  and  said  boat,  vessel,  scow,  or 
other  craft  may  be  proceeded  against  summarily  by  way 
of  libel  in  any  district  court  of  the  United  States  having 
jurisdiction  thereof.  Sec.  8,  Ibid. 

of^iK  waters  b*  829t  ^nat  whenever  tne  Secretary  of  War  grants  to  any 
piers,  etc.  person  or  persons  permission  to  extend  piers,  wharves, 
basi°™p  bulk-heads,  or  other  works,  or  to  make  deposits  in  any  tidal 

harbor  or  river  of  the  United  States  beyond  any  harbor- 
lines  established  under  authority  of  the  United  States,  he 
shall  cause  to  be  ascertained  the  amount  of  tide  water 
displaced  by  any  such  structure  or  by  any  such  deposits, 
and  he  shall,  if  he  deem  it  necessary,  require  the  parties  to 
whom  the  permission  is  given  to  make  compensation  for 
such  displacement  either  by  excavating  in  some  part  of 
the  harbor,  including  tide  water  channels  between  high 
and  low  water  mark,  to  such  an  extent  as  to  create  a  basin 
for  as  much  tide  water  as  may  be  displaced  by  such  struc- 
ture or  by  such  deposits,  or  in  any  other  mode  that  may 
be  satisfactory  to  him :  Provided,  That  all  such  dredging 
or  other  improvement  shall  be  carried  on  under  the  direc- 
tion of  the  Secretary  of  War,  and  shall  in  no  wise  injure 
any  existing  channels.  Sec.  9,  act  of  August  17,  1894  (28 
Stat.  L.,  364). 
Deposits  of  830,  That  it  shall  not  be  lawful  to  cast,  throw,  empty,  or 

ballast,     stone, 

earth,  etc.,  for- unlade,  or  cause,  suffer,  or  procure  to  be  cast,  thrown, 
Sec.  6,  sept.  19,  emptied,  or  unladen,  either  from  or  out  of  any  ship,  vessel, 

1890,  v.  26,  p.  453.  ..    £.  „ 

lighter,  barge,  boat,  or  other  craft,  or  from  the  shore,  pier, 
wharf,  furnace,  manufacturing  establishments,  or  mills  of 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  295 

any  kind  whatever,  any  ballast,  stone,  slate,  gravel,  earth, 
rubbish,  wreck,  filth,  slabs,  edgings,  sawdust,  slag,  cinders, 
ashes,  refuse,  or  other  waste  of  any  kind,  into  any  port, 
road,  roadstead,  harbor,  haven,  navigable  river,  or  naviga- 
ble waters  of  the  United  States  which  shall  tend  to  impede 
or  obstruct  navigation,  or  to  deposit  or  place  or  cause, 
suifer,  or  procure  to  be  deposited  or  placed,  any  ballast, 
stone,  slate,  gravel,  earth,  rubbish,  wreck,  filth,  slabs, 
edgings,  sawdust,  or  other  waste  in  any  place  or  situa- 
tion on  the  bank  of  any  navigable  waters  where  the  same 
shall  be  liable  to  be  washed  into  such  navigable  waters, 
either  by  ordinary  or  high  tides,  or  by  storms  or  floods,  or 
otherwise,  whereby  navigation  shall  or  may  be  impeded  or 
obstructed:  Provided,  That  nothing  herein  contained  shall  Lawful  de- 
extend  or  be  construed  to  extend  to  the  casting  out,  unlad-  P° 
ing,  or  throwing  out  of  any  ship  or  vessel,  lighter,  barge, 
boat,  or  other  craft,  any  stones,  rocks,  bricks,  lime,  or  other 
materials  used,  or  to  be  used,  in  or  toward  the  building, 
repairing,  or  keeping  in  repair  any  quay,  pier,  wharf,  weir, 
bridge,  building,  or  other  work  lawfully  erected  or  to  be 
erected  on  the  banks  or  sides  of  any  port,  harbor,  haven, 
channel,  or  navigable  river,  or  to  the  casting  out,  unlading, 
or  depositing  of  any  material  excavated  for  the  improve- 
ment of  navigable  waters,  into  such  places  and  in  such 
manner  as  may  be  deemed  by  the  United  States  officer 
supervising  said  improvement  most  judicious  and  practica- 
ble and  for  the  best  interests  of  such  improvements,  or  to 
prevent  the  depositing  of  any  substance  above  mentioned 
under  a  permit  from  the  Secretary  of  War,  which  he  is  e^gosits  by 
hereby  authorized  to  grant,  in  any  place  designated  by  him 
where  navigation  will  not  be  obstructed  thereby.  See.  6, 
act  of  September  19,  1890  (26  Stat.  L.,  453). 

OBSTRUCTION   OF   NAVIGATION  BY   SUNKEN  VESSELS,   ETC. 

831.  Whenever  hereafter  the  navigation  of  any  rivers  obstruction  by 
lake,  harbor,  or  bay,  or  other  navigable  water  of  the  United  or  waeter-claft.  8 
States,  shall  be  obstructed  or  endangered  by  any  sunken  issofv,  h 
vessel  or  water-craft,  it  shall  be  the  duty  of  the  Secretary 
of  War,  upon  satisfactory  information  thereof,  to  cause 
reasonable  notice,  of  not  less  than  thirty  days,  to  be  given, 
personally  or  by  publication,  at  least  once  a  week  in  the 
newspaper  published  nearest  the  locality  of  such  sunken 
vessel  or  craft,  to  all  persons  interested  in  such  vessel  or 
craft,  or  in  the  cargo  thereof,  of  the  purpose  of  said  Secre- 
tary, unless  such  vessel  or  craft  shall  be  removed  as  soon 
thereafter  as  practicable  by  the  parties  interested  therein, 
to  cause  the  same  to  be  removed.  If  such  sunken  vessel  Removal. 


296  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

or  craft  and  cargo  shall  not  be  removed  by  the  parties  in- 
terested therein  as  soon  as  practicable  after  the  date  of  the 
giving  of  such  notice  by  publication,  or  after  such  personal 
service  of  notice,  as  the  case  may  be,  such  sunken  vessel 
or  craft  shall  be  treated  as  abandoned  and  derelict,  and  the 
Secretary  of  War  shall  proceed  to  remove  the  same.  Such 
sunken  vessel  or  craft  and  cargo  and  all  property  therein 
when  so  removed  shall,  after  reasonable  notice  of  the  time 
and  place  of  sale,  be  sold  to  the  highest  bidder  or  bidders 
for  cash,  and  the  proceeds  of  such  sales  shall  be  deposited 
in  the  Treasury  of  the  United  States  to  the  credit  of  a  fund 
for  the  removal  of  such  obstructions  to  navigation,  under 
the  direction  of  the  Secretary  of  War,  and  to  be  paid  out 
for  that  purpose  on  his  requisition  therefor.  The  provisions 
of  this  act  shall  apply  to  all  such  wrecks  whether  removed 
under  this  act  or  under  any  other  act  of  Congress.  Such 
sum  of  money  as  may  be  necessary  to  execute  this  section 
of  this  act  is  hereby  appropriated,  out  of  any  money  in  the 
Treasury  of  the  United  States  not  otherwise  appropriated, 
to  be  paid  out  on  the  requisition  of  the  Secretary  of  War. 
Sec.  4,  act  of  June  14,  1880  (21  Stat.  L.,  197). 
Wrecks.etc.,  to  832.  That  all  wrecks  of  vessels  and  other  obstructions  to 

be    removed   bv 

Secretaryof  Waf.  the  navigation  of  any  port,  roadstead,  harbor,  or  navigable 
i89o,Cv.26,i?4'54.'  river,  or  other  navigable  waters  of  the  United  States,  which 
may  have  been  permitted  by  the  owners  thereof  or  the  par- 
ties by  whom  they  were  caused  to  remain  to  the  injury  of 
commerce  and  navigation  for  a  longer  period  than  two 
months,  shall  be  subject  to  be  broken  up  and  removed  by 
the  Secretary  of  War,  without  liability  for  any  damage  to 
the  owners  of  the  same.1  Sec.  8,  act  of  September  19,  1890 
(26  Stat.  L.,  454). 

suS^ves^is     833<  That  the  Power  and  authority  granted  to  the  Secre- 
may  be  sold  be-  tary  of  War  under  and  by  virtue  of  section  four  of  the  act 

fore  raising  or  re-          J  » 

movai.  Of  Congress  approved  June  fourteenth,  eighteen  hundred 

•A-Ug.  2,  1882,  v. 

22,  p.  208.  and  eighty,  relating  to  wrecks  and  sunken  vessels  be,  and 

the  same  are  hereby,  enlarged  so  that  the  Secretary  of  War 
may,  in  his  discretion,  sell  and  dispose  of  any  such  sunken 

1  Where  a  contract  was  about  to  be  made  -with  a  civilian  for  the  removal,  from  a 
harbor  channel,  of  certain  wrecks,  not  known  to  be  fully  abandoned  (and  directed 
by  act  of  Congress  to  be  caused  to  be  removed  by  the  Secretary  of  War),  and  it  was 
proposed  by  the  engineer  officer  in  charge  to  stipulate  in  the  contract  that  the  wrecks 
when  removed  should  belong  to  the  contractor,  held  that  this  could  not  properly  be 
done,  the  United  States  having  no  property  in  such  wrecks  (the  same  not  being  Gov- 
ernment vessels),  but  simply  a  right  to  remove  them  as  constituting  obstructions  to 
commerce  between  the  States.  (Dig.  Opin.  J.  A.  Gen.,  447,  par.  3.) 

In  an  opinion  of  the  Attorney-General,  of  May  24, 1877  (15  Opins.,  284),  it  is  held 
that  the  Secretary  of  War,  where  authorized  by  an  approriation  act  to  improve  the 
navigation  of  a  navigable  stream,  may  cause  to  be  removed  wrecks,  not  yet  aban- 
doned but  still  private  property,  if  he  considers  them  obstructions  to  navigation. 
And  see  his  later  opinion  of  April  27, 1880  (16  Opins.,  479),  as  to  the  authority  of  the 
United  States  to  improve  navigable  rivers  to  the  disregard  '»f  individual  rights  of 
property  in  the  soil  of  the  bed.  See,  also,  Dig.  J.  A.  Gen.,  p.  534,  par.  16. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 


297 


craft,  vessel,  or  cargo,  or  property  therein,  before  the  rais- 
ing or  removal  thereof,  according  to  the  same  regulations 
that  are  in  the  said  act  prescribed  for  the  sale  of  the  same 
after  the  removal  thereof;  and  all  laws  and  parts  of  laws 
inconsistent  herewith  are  hereby  repealed.  Act  of  August 
2,  1882  (22  Stat.  L.,  208). 

834.  Whenever  the  improvements  provided  for  by  this    Fish- ways. 
act,  or  those  which  have  heretofore  been  prosecuted  by  the  J888,v.  25  Puf 25?' 
United  States,  or  may  hereafter  be  undertaken,  shall  be 
found  to  operate  (whether  by  lock  and  dam  or  otherwise), 
as  obstructions  to  the  passage  of  fish,  the  Secretary  of  War 
may,  in  his  discretion,  direct  and  cause  to  be  constructed 
practical  and  sufficient  fish-ways,  to  be  paid  for  out  of  the 
general  appropriations  for  the  streams  on  which  such  fish- 
ways  may  be  constructed.     Sec.  11,  act  of  August  llj  1888 
(25  Stat.  £.,  425). 


DEPOSITS   IN  NEW  YORK  HARBOR. 


Par. 

g35.  Deposits  in  New  York  Harbor 
forbidden;  penalty. 

836.  Punishment  of  officer  of  boat. 

837.  Supervisors  to  designate  place 

of  deposit ;  permits. 

838.  Penalty  for  discharging  else- 

where. 

839.  Boats  to  carry  name  painted 

on  stern. 


Par. 

840.  Inspectors. 

841.  Bribery;  penalty. 

842.  Return  of  permits ;  penalty. 

843.  Disposal  of  matter  dredged. 

844.  Supervisor  of  harbor. 

845.  Fishing  in  ship  channels  for. 

bidden. 

846.  Penalties. 

847.  Arrests. 


835.  That  the  placing,  discharging,  or  depositing,  by  any 
process  or  in  any  manner,  of  refuse,  dirt,  ashes,  cinders,  °u»  .deposits  in, 
mud,  sand,  dredgings,  sludge,  acid,  or  any  other  matter  of  aity. 
any  kind,  other  than  that  flowing  from  streets,  sewers,  and  i886,v.24,  p.g329; 
passing  therefrom  in  a  liquid  state,  in  the  tidal  waters  of  i888,v.  25^269! 
the  harbor  of  New  York,  or  its  adjacent  or  tributary  waters, 
or  in  those  of  Long  Island  Sound,  within  the  limits  which 
shall  be  prescribed  by  the  supervisor   of  the  harbor,  is 
hereby  strictly  forbidden,  and  every  such  act  is  made  a 
misdemeanor,  and  every  person  engaged  in  or  who  shall 
aid,  abet,  authorize,  or  instigate  a  violation  of  this  section, 
shall,  upon  conviction,  be  punishable  by  fine  or  imprison- 
ment, or  both,  such  fine  to  be  not  less  than  two  hundred 
and  fifty  dollars  nor  more  than  two  thousand  five  hundred 
dollars,  and  the  imprisonment  to  be  not  less  than  thirty 
days  nor  more  than  one  year,  either  or  both  united,  as  the 
judge  before  whom  conviction  is  obtained  shall  decide,  one 
half  of  said  fine  to  be  paid  to  the  person  or  persons  giving 


298  THE    MILITARY   LAWS    OF    THE    UNITED   STATES. 

information  which  shall  lead  to  conviction  of  this  misde- 
meanor.1    Sec.  1,  act  of  June  29,  1888  (25  Stat.  L.,  209}. 
Punishment  of     836.  That  any  and  every  master  and  engineer,  or  person 

officer  of  boat.  \ 

Sec.  2,  June 29,  or  persons  acting  in  such  capacity,  respectively,  on  board 

1888,  v.  25,  p.  209. 

of  any  boat  or  vessel,  who  shall  knowingly  engage  in  tow- 
ing any  scow,  boat,  or  vessel  loaded  with  any  such  prohib- 
ited matter  to  any  point  or  place  of  deposit,  or  discharge 
in  the  waters  of  the  harbor  of  New  York,  or  in  its  adjacent, 
or  tributary  waters,  or  in  those  of  Long  Island  Sound,  or 
to  any  point  or  place  elsewhere  than  within  the  limits 
denned  and  permitted  by  the  supervisor  of  the  harbor  here- 
inafter mentioned,  shall  be  deemed  guilty  of  a  violation  of 
this  act,  and  shall,  upon  conviction,  be  punishable  as  herein- 
before provided  for  offenses  in  violation  of  section  one  of 
this  act,  and  shall  also  have  his  license  revoked  or  suspended 
for  a  term  to  be  fixed  by  the  judge  before  whom  tried  and 
convicted.  Sec.  2,  act  of  June  29,  1888  (25  Stat.  L.,  209). 
Supervisor  to  837,  That  in  all  cases  of  receiving  on  board  of  any  scows 

designate    place          ,  .»'..«« 

of  deposit.         or  boats  such  forbidden  matter  or  substance  as  herein 

Sec.  3,  June  29,   ,  ..       ,  . 

1888,  v.  25,  p.  209;  described,  the  owner  or  master,  or  person  acting  in  such 
1894,  v,  zs^'aeo1.  capacity  on  board  of  such  scows  or  boats,  before  proceed- 
ing to  take  or  tow  the  same  to  the  place  of  deposit,  shall 
apply  for  and  obtain  from  the  supervisor  of  the  harbor 

Permits.  appointed  hereunder  a  permit  defining  the  precise  limits 
within  which  the  discharge  of  such  scows  or  boats  may  be 
made;  and  it  shall  not  be  lawful  for  the  owner  or  master, 
or  person  acting  in  such  capacity,  of  any  tug  or  towboat 
to  tow  or  move  any  scow  or  boat  so  loaded  with  such  for- 
bidden matter  until  such  permit  shall  have  been  obtained; 

Penalty.  and  every  person  violating  the  foregoing  provisions  of  this 
section  shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof  shall  be  punished  by  a  fine  of  not  more 
than  one  thousand  nor  less  than  five  hundred  dollars,  and 
in  addition  thereto  the  master  of  any  tug  or  towboat  so 
offending  shall  have  his  license  revoked,  or  suspended  for 
a  term  to  be  fixed  by  the  judge  before  whom  tried  aud 
convicted.  Sec.  3,  act  of  August  17, 1894  (28  Stat.  L.,  360). 

Penalty  fordis-     838.  And  any  deviation  from  such  dumping  or  discharg- 

charging  else-.  ,  .„     ,   .  .  .     , 

where.  ing  place  specified  in  such  permit  shall  be  a  misdemeanor, 

and  the  owner  and  master,  or  person  acting  in  the  capacity 
of  master,  of  any  scows  or  boats  dumping  or  discharging 
such  forbidden  matter  in  any  place  other  than  that  speci- 
fied in  such  permit  shall  be  liable  to  punishment  therefor 
as  provided  in  section  one  of  the  said  Act  of  June  twenty- 
ninth,  eighteen  hundred  and  eighty-eight ;  and  the  owner 
and  master,  or  person  acting  in  the  capacity  of  master, 

1See  Dig.  J.  A.  Gen.,  533,  parapraphs  13  and  14,  and  20  Opin.  Att.  Gen.,  293. 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 


299 


toectcry 


of  any  tug  or  towboat  towing  such  scows  or  boats  shall  be 
liable  to  equal  punishment  with  the  owner  and  master,  or 
person  acting  in  the  capacity  of  master,  of  the  scows  or 
boats;  and,  further,  every  scowman  or  other  employee  on 
board  of  both  scows  and  towboats  shall  be  deemed  to  have 
knowledge  of  the  place  of  dumping  specified  in  such  per- 
mit, and  the  owners  and  masters,  or  persons  acting  in  the 
capacity  of  masters,  shall  be  liable  to  punishment,  as  afore- 
said, for  any  unlawful  dumping,  within  the  meaning  of  this 
Act  or  of  the  said  Act  of  June  twenty-ninth,  eighteen  hun- 
dred and  eighty-eight,  which  may  be  caused  by  the  negli- 
gence or  ignorance  of  such  scowman  or  other  employee; 
and,  further,  neither  defect  in  machinery  nor  avoidable 
accidents  to  scows  or  towboats,  nor  unfavorable  weather, 
nor  improper  handling  or  moving  of  scows  or  boats  of  any 
kind  whatsoever,  shall  operate  to  release  the  owners  and 
masters  and  employees  of  scows  and  towboats  from  the 
penalties  hereinbefore  mentioned.  Ibid. 

839.  Every  scow  or  boat  engaged  in  the  transportation  of 
dredgings,  earth,  sand,  mud,  cellar  dirt,  garbage,  or  other  pa| 
offensive  material  of  any  description  shall  have  its  name  or 
number  and  owner's  name  painted  in  letters  and  numbers 
at  least  fourteen  inches  long  on  both  sides  of  the  scow  or 
boat;  these  names  and  numbers  shall  be  kept  distinctly 
legible  at  all  times,  and  no  scow  or  boat  not  so  marked 
shall  be  used  to  transport  or  dump  any  such  material.    Ibid. 

840,  The  supervisor  of  the  harbor  of  New  York,  designated    inspectors. 
as  provided  in  section  five  of  the  said  Act  of  June  twenty- 

ninth,  eighteen  hundred  and  eighty-eight,  is  authorized  and 
directed  to  appoint  inspectors  and  deputy  inspectors,  and, 
for  the  purpose  of  enforcing  the  provisions  of  this  Act  and 
of  the  Act  aforesaid,  and  of  detecting  and  bringing  to 
punishment  oifenders  against  the  same,  the  said  supervisor 
of  the  harbor,  and  the  inspectors  and  deputy  inspectors  so 
appointed  by  him,  shall  have  power  and  authority: 

First.  To  arrest  and  take  into  custody,  with  or  without 
process,  any  person  or  persons  who  may  commit  any  of  the 
acts  or  offenses  prohibited  by  this  section  and  by  the  Act 
of  June  twenty-ninth,  eighteen  hundred  and  eighty-eight, 
aforesaid,  or  who  may  violate  any  of  the  provisions  of  the 
same  :  Provided,  That  no  person  shall  be  arrested  without 
process  for  any  offense  not  committed  in  the  presence  of 
the  supervisor  or  his  inspectors  or  deputy  inspectors,  or 
either  of  them  :  And  provided  further  ',  That  whenever  any 
such  arrest  is  made  the  person  or  persons  so  arrested  shall 
be  brought  forthwith  before  a  commissioner,  judge  or  court 


Ibid. 


Duties. 
Arrests. 


300      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

of  the  United  States  for  examination  of  the  offenses  alleged 
against  him;  and  such  commissioner,  judge^  or  court  shall 
proceed  in  respect  thereto  as  authorized  by  law  in  case  of 
crimes  against  the  United  States. 

seizure  of  Second.  To  go  on  board  of  any  scow  or  towboat  engaged 
in  unlawful  dumping  of  prohibited  material,  or  in  moving 
the  same  without  a  permit  as  required  in  this  section  of 
this  Act,  and  to  seize  and  hold  said  boats  until  they  are 
discharged  by  action  of  the  commissioner,  judge,  or  court 
of  the  United  States  before  whom  the  offending  persons  are 
brought. 

custodyofwit-  Third.  To  arrest  and  take  into  custody  any  witness  or 
witnesses  to  such  unlawful  dumping  of  prohibited  material, 
the  said  witnesses  to  be  released  under  proper  bonds. 

Accompanying  Fourth.  To  go  on  board  of  any  towboat  having  in  tow 
scows  or  boats  loaded  with  such  prohibited  material,  and 
accompany  the  same  to  the  place  of  dumping,  whenever 
such  action  appears  to  be  necessary  to  secure  compliance 
with  the  requirements  of  this  Act  and  of  the  Act  aforesaid. 

inspecting  gas,  Fifth.  To  enter  gas  and  oil  works  and  all  other  manu- 
facturing works  for  the  purpose  of  discovering  the  disposi- 
tion made  of  sludge,  acid,  or  other  injurious  material,  when- 
ever there  is  good  reason  to  believe  that  such  sludge,  acid, 
or  other  injurious  material  is  allowed  to  run  into  the  tidal 
waters  of  the  harbor  in  violation  of  section  one  of  the  afore- 
said Act  of  June  twenty-ninth,  eighteen  hundred  and 
eighty-eight.  Ibid. 

Bribery;  pen-     841.  Every  person  who,  directly  or  indirectly,  gives  any 

ibid.  sum  of  money  or  other  bribe,  present,  or  reward  or  makes 

any  offer  of  the  same  to  any  inspector,  deputy  inspector,  or 
other  employee  of  the  office  of  the  supervisor  of  the  harbor 
with  intent  to  influence  such  inspector,  deputy  inspector, 
or  other  employee  to  permit  or  overlook  any  violation  of 
the  provisions  of  this  section  or  of  the  said  Act  of  June 
twenty-ninth,  eighteen  hundred  and  eighty-eight,  shall,  on 
conviction  thereof,  be  fined  not  less  than  five  hundred  dol- 
lars nor  more  than  one  thousand  dollars,  and  be  imprisoned 
not  less  than  six  months  nor  more  than  one  year.  Ibid. 

Return  of  per-     842.  Every  permit  issued  in  accordance  with  the  provi- 

ibid.  sions  of  this  section  of  this  Act  which  may  not  be  taken  up 

by  an  inspector  or  deputy  inspector  shall  be  returned  within 
forty-eight  hours  after  issuance  to  the  office  of  the  super- 
visor of  the  harbor ;  such  permit  shall  bear  an  indorsement 
by  the  master  of  the  towboat,  or  the  person  acting  in  such 
capacity,  stating  whether  the  permit  has  been  used,  and  if 

Penalty.         so  the  time  and  place  of  dumping.    Any  person  violating 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      301 

the  provisions  of  this  section  shall  be  liable  to  a  fine  of  not 
more  than  five  hundred  dollars  nor  less  than  one  hundred 
dollars.  Ibid. 

843.  That  all  mud,  dirt,  sand,  dredgings,  and  material  of  Disposal  of 
every  kind  and  description  whatever  taken,  dredged,  ormlece4,  /uneSoi 
excavated  from  any  slip,  basin,  or  shoal  in  the  harbor  of 1888>  Vt  25)  p>  210' 
New  York,  or  the  waters  adjacent  or  tributary  thereto,  and 

placed  on  any  boat,  scow,  or  vessel  for  the  purpose  of  being 
taken  or  towed  upon  the  waters  of  the  harbor  of  New  York 
to  a  place  of  deposit,  shall  be  deposited  and  discharged  at 
such  place  or  within  such  limits  as  shall  be  defined  and 
specified  by  the  supervisor  of  the  harbor,  as  in  the  third 
section  of  this  act  prescribed,  and  not  otherwise.  Every 
person,  firm,  or  corporation  being  the  owner  of  any  slip, 
basin,  or  shoal,  from  which  such  mud,  dirt,  sand,  dredgings, 
and  material  shall  be  taken,  dredged,  or  excavated,  and 
every  person,  firm,  or  corporation  in  any  manner  engaged  in 
the  work  of  dredging  or  excavating  any  such  slip,  basin,  or 
shoal,  or  of  removing  such  mud,  dirt,  sand,  or  dredgings 
therefrom,  shall  severally  be  responsible  for  the  deposit 
and  discharge  of  all  such  mud,  dirt,  sand,  or  dredgings  at 
such  place  or  within  such  limits  so  defined  and  prescribed 
by  said  supervisor  of  the  harbor ;  and  for  every  violation 
of  the  provisions  of  this  section  the  person  offending  shall 
be  guilty  of  an  offense  against  this  act,  and  shall  be  pun- 
ished by  a  fine  equal  to  the  sum  of  five  dollars  for  every 
cubic  yard  of  mud,  dirt,  sand,  dredgings,  or  material  not 
deposited  or  discharged  as  required  by  this  section.  Any 
boat  or  vessel  used  or  employed  in  violating  any  provision 
of  this  act,  shall  be  liable  to  the  pecuniary  penalties  im- 
posed thereby,  and  may  be  proceeded  against  summarily 
by  way  of  libel  in  any  district  court  of  the  United  States, 
having  jurisdiction  thereof.1  Sec.  4,  act  of  June  39,1888 
(25  Stat.  L.,  210). 

844.  That  a  line  officer  of  the  Navy  shall  be  designated  t-^^°T  °f 
by  the  President  of  the  United  States  as  supervisor  of  the    Sec- 5. ibid- 
harbor,  to  act  under  the  direction  of  the  Secretary  of  War 

in  enforcing  the  provisions  of  this  act,  and  in  detecting 
offenders  against  the  same.  This  officer  shall  receive  the 
sea-pay  of  his  grade,  and  shall  have  personal  charge  and 
supervision  under  the  Secretary  of  War,  and  shall  direct  .  . 

1  Where  ashes  are  dumped,  in  an  unlawful  place,  from  the  deck  of  an  ocean  steamer 
by  her  firemen,  presumably  acting  under  orders  from  some  superior  officer  of  the 
steamer,  the  steamer  at  thie  time  being  engaged  in  performing  a  freighting  voyage 
to  sea,  and  the  dumping  of  ashes  accumulated  at  her  furnace  oeing  a  necessary  in- 
cident of  her  navigation,  the  statute  takes  effect  and  renders  the  steamer  liable  as 
having  herself  violated  the  law.  The  Bombay.  46  Fed.  Rep.,  665.  See,  also,  case  of 
the  Anjer  Head,  46  Fed.  Rep,,  664.  See,  also,  i>ig.  J.  A.  Gen.,  533,  par.  14,  and  20  Opin. 
Att.  Gen.,  293. 


302 


THE   MILITARY   LAWS    OP   THE    UNITED    STATES. 


the  patrol  boats  and  other  means  to  detect  and  bring  to 
punishment  offenders  against  the  provisions  of  this  act. 
Sec.  5,  ibid. 
Fishing,  etc.,     845.  It  shall  be  unlawful  for  any  person  or  persons  to 

in  ship  channels  .       „    ,  .  ,        ,     .          j.  i      n  .a    i      •  <?  A-I 

forbidden.  engage  in  fishing  or  dredging  for  shell  fish  in  any  of  the 
i894,Cv228,  p?36o!  channels  leading  to  and  from  the  harbor  of  New  York,  or 
to  interfere  in  any  way  with  the  safe  navigation  of  those 
channels  by  ocean  steamships  and  ships  of  deep  draft. 

Penalties.  846.  Any  person  or  persons  violating  the  foregoing  pro- 

visions of  this  section  shall  be  deemed  guilty  of  a  misde- 

ibid.  meanor,  and  on  conviction  thereof  shall  be  punished  by 

fine  or  imprisonment,  or  both,  such  fine  to  be  not  more  than 
two  hundred  and  fifty  dollars  nor  less  than  fifty  dollars,  and 
the  imprisonment  to  be  not  more  than  six  months  nor  less 
than  thirty  days,  either  or  both  united,  as  the  judge  before 
whom  conviction  is  obtained  shall  decide.  Ibid. 

Arrests.  847.  It  shall  be  the  duty  of  the  United  States  Supervisor 

of  the  harbor  to  enforce  this  Act,  and  the  deputy  inspectors 
of  the  said  supervisor  shall  have  authority  to  arrest  and 
take  into  custody,  with  or  without  process,  any  person  or 
persons  who  may  commit  any  of  the  acts  or  offenses  pro- 

Process.  hibited  by  this  Act:  Provided,  That  no  person  shall  be 
arrested  without  process  for  any  offense  not  committed  in 
the  presence  of  the  supervisor  or  his  inspector  or  deputy 
inspectors,  or  either  of  them :  And  provided  further,  That 

proceedings,  whenever  any  such  arrest  is  made  the  person  or  persons  so 
arrested  shall  be  brought  forthwith  before  a  commissioner, 
judge,  or  court  of  the  United  States  for  examination  of 
the  offenses  alleged  against  him;  and  such  commissioner, 
judge,  or  court  shall  proceed  in  respect  thereto  as  author- 
ized by  law  in  case  of  crimes  against  the  United  States. 
Sec.  2,  act  of  August  17, 1894  (28  Stat.  L.,  360). 

ANCHORAGE  GROUNDS. 

Par.  I  Par. 

848-849.  Anchorage    grounds  in  I  853.  Unlawful     deposits     forbid- 

Chicago  Harbor.  den. 

850-851.  Anchorage    grounds  in  j  854.  Penalty. 


New  York  Harbor. 
852.  Harbor   regulations  for  the 
District  of  Columbia. 


855.  Limitation. 


ANCHORAGE   GROUNDS  IN  CHICAGO  HARBOR. 

848>  That  the  Secretary  of  the  Treasury  be  authorized 
ed  and  directed  to  define  and  establish  anchorage  grounds 


the  Treasury  °ffor  vessels  in  the  harbors  of  Chicago,  and  waters  of  Lake 

27Feb43i'  18^'  v'  MichiSan  adjacent  thereto,  to  adopt  suitable  rules  and  reg- 

ulations in  relation  to  the  same,  and  also  to  adopt  suitable 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  303 

rules  and  regulations  governing  the  use  of  marked  inshore 
channels  in  Lake  Michigan  in  front  of  the  city  of  Chicago, 
and  to  take  all  necessary  measures  for  the  proper  enforce- 
ment of  such  rules  and  regulations.  Act  of  February  6, 
1893(27  Stat.  L.,431). 

849.  That  in  the  event  of  the  violation  of  any  such  rules ,  Penalty  for  vio- 

J  lation  of  rules. 

or  regulations  by  the  owner,  master,  or  person  in  charge  Sec-  2> ibid- 
of  any  vessel,  such  owner,  master,  or  person  in  charge  of 
such  vessel  shall  be  liable  to  a  penalty  of  one  hundred 
dollars,  and  the  said  vessel  may  be  holden  for  the  payment 
of  such  penalty,  and  may  be  seized  and  proceeded  against 
summarily  by  libel  for  the  recovery  of  the  same  in  any 
United  States  district  court  for  the  district  within  which 
such  vessel  may  be,  and  in  the  name  of  the  officer  desig- 
nated by  the  Secretary  of  the  Treasury.  Sec.  2,  ibid. 

ANCHORAGE  GROUNDS  IN  NEW  YORK  HARBOR. 

850.  That  the  Secretary  of  the  Treasury  is  authorized,    Anchorage 
empowered,  and  directed  to  define  and  establish  an  anchor-  St "wished    by 
age  ground  for  vessels  in  the  bay  and  harbor  of  New  York,  the  lYeasuT/  ° 
and  in  the  Hudson  and  East  rivers,  to  adopt  suitable 2s!p?i5i?' 1888> v' 
rules  and  regulations  in  relation  thereto,  and  to  take  all 
necessary  measures  for  the  proper  enforcement  of  such 

rules  and  regulations.    Act  of  May  16, 1888  (25  Stat.  L.,  151). 

851.  That  in  the  event  of  the  violation  of  any  such  rules    Penalty. 

Sec.  2,  ibid. 

or  regulations  by  the  owner,  master,  or  person  in  charge 
of  any  vessel,  such  owner,  master,  or  person  in  charge  of 
such  vessel  shall  be  liable  to  a  penalty  of  one  hundred  dol- 
lars, and  the  said  vessel  may  be  holden  for  the  payment  of 
such  penalty,  and  may  be  seized  and  proceeded  against 
summarily  by  libel  for  the  recovery  of  the  same  in  any 
United  States  district  court  for  the  district  in  which  such 
vessel  may  be,  and  in  the  name  of  the  officer  designated 
by  the  Secretary  of  the  Treasury.  Sec.  2,  ibid. 

HARBOR   REGULATIONS   FOR   THE   DISTRICT    OF    COLUMBIA. 

852.  That  it  shall  be  unlawful  for  any  owner  or  occupant  t^^J^.*' 
of  any  wharf  or  dock,  any  master  or  captain  of  any  vessel,  trictof  Columbia, 
or  any  person  or  persons  to  cast,  throw,  drop,  or  deposit  29,  Pa'i26.' 
any  ballast,  dirt,  oyster  shells,  or  ashes  in  the  water  in  any 

part  of  the  Potomac  River  or  its  tributaries  in  the  District 
of  Columbia,  or  on  the  shores  of  said  river  below  high- water 
mark,  unless  for  the  purpose  of  making  a  wharf,  after  per- 
mission has  been  obtained  from  the  Commissioners  of  the 
District  of  Columbia  for  that  purpose,  which  wharf  shall  be 


304 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 


sufficiently  inclosed  and  secured  so  as  to  prevent  injury  to 
navigation.    Act  of  May  19, 1896  (29  Stat.  L.,  126). 
unlawful   de-     853.  That  it  shall  be  unlawful  for  any  owner  or  occupant 

posits  forbidden. 

Sec.2,iMd.  of  any  wharf  or  dock,  any  captain  or  master  of  any  vessel, 
or  any  other  person  or  persons  to  cast,  throw,  deposit,  or 
drop  in  any  dock  or  in  the  waters  of  the  Potomac  Kiver  or 
its  tributaries  in  the  District  of  Columbia  any  dead  fish, 
fish  offal,  dead  animals  of  any  kind,  condemned  oysters 
in  the  shell,  watermelons,  cantaloupes,  vegetables,  fruits, 
shavings,  hay,  straw,  ice,  snow,  filth,  or  trash  of  any  kind 
whatsoever.  Sec.  2,  ibid. 

854.  That  any  person  or  persons  violating  any  of  the 
provisions  of  this  act  shall  be  deemed  guilty  of  a  misde- 
meanor, and  on  conviction  thereof  in  the  police  court  of  the 
District  of  Columbia  shall  be  punished  by  a  fine  not  exceed- 
ing one  hundred  dollars  or  by  imprisonment  not  exceeding 
six  months,  or  by  both  such  punishments,  in  the  discretion 
of  the  court.     Sec. «?,  ibid. 

855.  That  nothing  in  this  act  contained  shall  be  construed 
to  interfere  with  the  work  of  improvement  in  or  along  the 
said  river  and  harbor,  under  the  supervision  of  the  United 
States  Government.     Sec.  4,  ibid. 


Penalty. 
Sec.  3,  ibid. 


Limitation. 
Sec.  4,  ibid. 


CHAPTER  XXII. 


THE  ORDNANCE  DEPARTMENT— THE  BOARD  OF 

ORDNANCE  AND  FORTIFICATION,  ARMS, 

ARMORIES,  AND  ARSENALS. 

THE  ORDNANCE  DEPARTMENT. 


Par. 

856.  The  Ordnance   Department; 

composition ;  examinations. 

857.  Promotions;  examinations  for 

promotion. 

858.  Duties  of  Chief  of  Ordnance. 

859.  Issues. 

860.  Depots. 

861.  Semiannual  reports. 

862.  Pay  of  principal  assistant  to 

Chief  of  Ordnance . 

863.  Rank  of  ordnance  storekeep- 

ers. 

864.  Storekeepers  may  act  as  pay- 

masters. 

865.  Ordnance-sergeants. 

866.  How  selected. 

867.  Enlisted  men  of  ordnance. 


Par. 

868.  Detail  of  artificers. 

869.  Returns  of  ordnance. 

870.  Reports  of  damages. 

871.  Cost    of  repairs    to    be   de- 

ducted, etc. 

872.  Purchases  not  exceeding  $200 

in  amount ;  how  made. 

873.  Sale    of    unserviceable    ord- 

nance stores. 

874.  Exchange  or  sale  of  unserv- 

iceable powder  and  shot. 

875.  Sale  of  useless  ordnance ;  pro- 

ceeds   available    for    pur- 
chases of  new  material. 

876.  Loans  or  gifts  of  condemned 

ordnance  authorized. 


ordnance  De- 


1815>  v< 


C 


856.  That  the  Ordnance  Department  shall  consist  of  one 
Chief  of  Ordnance,  with  the  rank,  pay,  and  emoluments 
a  brigadier-general  5  three  colonels,  four  lieutenant-colonels 
ten  majors,  twenty  captains,  sixteen  first  lieutenants;  and  i874,Cvi 
all  vacancies  which  may  hereafter  exist  in  the  grade  of   Sec«1159>B-8' 
first  lieutenant  in  said  Department  shall  be  filled  by  trans- 
fer from  the  line  of  the  Army  j1  Provided,  That  no  appoint- 
ment or  promotion  in  said  Department  shall  hereafter  be 
made  until  the  officer  or  person  so  appointed  [or  promoted] 
shall  have  passed  a  satisfactory  examination  before  a  board    Examinations. 
of  ordnance-officers  senior  to  himself.1     Sec.  5,  act  of  June 
23,  1874  (18  Stat.  L.,  245). 

1  The  Department  was  reorganized  by  section  5  of  the  act  of  June  23,  1874  (18  Stat. 
L.,  245),  which  replaced  the  provisions  of  section  1159,  Revised  Statutes,  in  respect  to 
the  same  subject.  See,  also,  Scott's  Digest,  par.  401,  notes. 

Examinations  for  promotion  in  this  Department  are  now  regulated  by  the  acts  of 
October  1,  1890  (26  Stat.  L.  562),  and  July  27,  1892  (27  Stat.  L.,  276). 

Vacancies  in  the  lowest  grade  in  the  Ordnance  Department  are  filled  by  the 
appointment  of  officers  from  the  line  of  the  Army  who  have  passed  a  satisfactory 
examination  of  the  kind  prescribed  in  this  section.  The  conditions  of  appointment 
and  examination  are  set  forth  in  the  following  paragraphs  of  the  Army  Regulations 
of  1895  : 

Vacancies  in  the  grade  of  first  lieutenant  of  ordnance  are  filled  by  transfer  from 


305 


1919 20 


306  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

Examination     957.  That  the  examination  of  officers  of  the  Corps  of 

of  certain  officers  • 

of  Engineers  and  Engineers  and  Ordnance  Department,  who  were  omcers  or 
sec?2?juiy  27,  enlisted  men  in  the  regular  or  volunteer  service,  either  in 

1892,  v.  27,  p.  276.  tlie  Army?  Kavy,  or  the  Marine  Corps,  during  the  war  of  the 
rebellion,  shall  be  conducted  by  boards  composed  in  the  same 
manner  as  for  the  examination  of  other  officers  of  their  re- 
spective corps  or  department;  and  the  examinations  shall 
embrace  the  same  subjects  prescribed  for  all  other  officers 
of  similar  grades  in  the  Corps  of  Engineers  and  Ordnance 
Department,  respectively.1  Sec.  £,  act  of  July  27,  1892  (27 
Stat.  L.,  276). 
Duties  of  chief  858.  It  shall  be  the  duty  of  the  Chief  of  Ordnance  to 

°fiS?Ti8i5.  c.  furnish  estimates,  and,  under  the  direction  of  the  Secretary 

38Secfii64,PB!°l.'  ot  War,  to  make  contracts  and  purchases,  for  procuring 
the  necessary  supplies  of  ordnance  and  ordnance  stores, 
for  the  use  of  the  armies  of  the  United  States  ;  to  direct  the 
inspection  and  proving  of  the  same,  and  to  direct  the  con- 
struction of  all  cannon  and  carriages,  ammunition-wagons, 
traveling  forges,  artificers'  wagons,  and  of  every  implement 
and  apparatus  for  ordnance,  and  the  preparation  of  all 
kinds  of  ammunition  and  ordnance  stores  constructed  or 
prepared  for  said  service. 
issues.  859.  The  Chief  of  Ordnance,  or  the  senior  officer  of  that 

38F8e  5',  v!  alp^oa!  corps  for  any  district,  shall  execute  all  orders  of  the  Secre- 


Sec.  nee,  B.  s.  ^y  0^  War,  and,  in  time  of  war,  the  orders  of  any  general 
or  field  officer  commanding  an  army,  garrison,  or  detach- 
ment, for  the  supply  of  all  ordnance  and  ordnance  stores 
for  garrison,  field,  or  siege  service. 

Depots.  860.  The  Chief  of  Ordnance,  under  the  direction  of  the 

Feb.  8,  1815,  c.  ~  „  ,„,.  *.-•••»•*'•*  r>         ^ 

38,  s.  9,  v.  3,  p.  204.  Secretary  ot  War,  may  establish  depots  of  ordnance  and 
»ec.H65,B.s.  or{jnance  stores  in  such  parts  of  the  United  States,  and  in 
such  numbers,  as  may  be  deemed  necessary. 

the  line  of  the  Army.  To  be  eligible,  an  officer  must  be  less  than  30  years  of  age, 
must  have  served  at  least  two  years  as  an  officer  in  the  line  of  the  Army,  and  must 
have  passed  a  satisfactory  examination  before  a  board  of  ordnance  officers.  Appli- 
cations for  examination  will  be  made  to  the  Adjutant-General  of  the  Army.  (Par. 
1489,  A.  K.,  1895.) 

Should  the  applicant  be  directed  to  appear  before  a  board,  he  will,  after  passing  a 
satisfactory  preliminary  examination  as  to  his  physical  qualifications,  be  examined 
upon  the  following,  or  such  other  subjects  as  the  Secretary  of  War  may  prescribe: 
Gun  construction,  present  and  past  state  of  the  art  ;  ballistics  and  ballistic  machines  ; 
types  of  projectiles  and  gun  carriages  ;  gunpowder,  types  and  modes  of  manufacture  ; 
small  arms  and  machine  guns  ;  employment  of  artillery,  kinds  of  fire,  etc.  ;  armored 
defenses;  materials  for  ordnance  construction  and  processes  of  manufacture  ;  torpe- 
does for  coast  defenses;  general  principles  of  mechanics.  (Par.  1490,  ibid.) 

The  acts  of  June  23,  1874,  March  3,  1875,  and  June  26,  1876,  reorganizing  the  staff 
corps,  provide  "that  no  officer  now  in  service  shall  be  reduced  in  rank  or  mustered 
put  by  reason  of  any  provisions  of  law  therein  made  reducing  tbe  number  of  officers 
in  any  department  or  corps  of  the  Army."  There  are  now  in  service,  in  excess  of 
the  number  allowed  by  these  acts,  one  military  storekeeper,  captain,  in  the  Quarter- 
' 


.  ,  .  ., 

258),  the  ordnance  storekeeper  on  duty  iu  Washington  as  disbursing  officer  and 
assistant  to  the  Chief  of  Ordnance  was  given  the  rank  of  major. 

Promotions  to  the  grade  of  colonel  in  this  Department  are  made  by  seniority,  sub- 
ject, in  the  grades  of  captain  and  major,  to  the  examinations  required  by  the  acts  of 
October  1,  1890  (26  Stat.  L.,  562),  and  July  27,  1892  (27  Stat.  L.,  276).  Officers  of  the 
Ordnance  Department  after  fourteen  years'  continuous  service  as  lieutenants  are 
entitled  to  the  benefits  of  section  1207,  Revised  Statutes.  (See  paragraph  700,  ante.) 

1  For  other  statutory  provisions  respecting  examinations,  see  paragraph  856,  ante, 
and  the  chapters  entitled  THE  STAFF  DEPARTMENTS  and  THE  ENGINEER  DEPARTMENT. 


THE    MILITARY   LAWS    OF   THE   UNITED   STATES.  307 

861.  The  Chief  of  Ordnance  shall,  half-yearly,  or  oftener  ^semiannual  «. 
if  so  directed,  make  a  report  to  the  Secretary  of  War  of  o/eb.  s,  isis,  o. 

.  .  ^8,  s.  8,  v.  3,  p.  204; 

all  the  officers  and  enlisted  men  in  his  department  of  the  Feb.  27,1377,0.  69, 
service,  and  of  all  ordnance  and  ordnance  stores  under  hisVSec.Pii67',B.s. 
control. 

862.  The  principal  assistant  in  the  Ordnance  Bureau    ?&y  <?f  princi- 

pal assistant  to 

shall  receive  a  compensation,  including  pay  and  emolu-  chief  of  ord- 
ments,  not  exceeding  that  of  a  major  of  ordnance.  19  p  243  ^mif  £  s.' 

863.  The  ordnance  store-keeper  at  Springfield  armory    Rank  of  ord- 
shall  have  the  rank  of  major  of  cavalry  and  the  ordnance  keepers.  8 
store-keeper  now  on  duty  in  Washington  as  disbursing  offi-  U^T'7\18^'  c- 
cer  and  assistant  to  the  Chief  of  Ordnance,  United  States  423  ';  ^ar.  3,  i86?i 
Army,  shall  hereafter  have  the  rank  of  major.     Act  ofpwf  Ju™  23', 


June  6',  1896  (29  Stat.  L.,  260.)    All  other  ordnarce  store-  sv.       p.245'; 
keepers  shall  have  the  rank  of  captain  of  cavalry  2^np.  2'eo1  96)  v' 

Sec.  1159,  E.S. 

864.  Any  number,  not  exceeding  six,  of  the  ordnance    storekeepers 

may  act  as  pay- 

storekeepers  may  be  authorized  to  act  as  paymasters  at  masters. 

.  ..  .  Sec.  1161;  U.S. 

armories  and  arsenals. 


ENLISTED  MEN  OF   ORDNANCE. 

865.  There  shall  bean  ordnance-sergeant  for  each  mili- 

tary  post,  whose  duty  it  shall  be  to  take  care  of  the  ord- anju- 1866  c 
nance,  arms,  ammunition,  and  other  military  stores  at  such  333'.  \7p'rV5  Y&l' 
post,  under  the  direction  of  the  commanding  officer^  and  j?^7' 8>  2' v'  4'  P' 
according  to  regulations  prescribed  by  the  Secretary  of  sec.  1109,  B.S. 
War.1 

866.  Ordnance- sergeants  shall  be  selected  by  the  Sec-    JT  Ieli832 dc 
retary  of  War  from  the  sergeants  of  the  line  who  ^an^^^wjl 
have  served  faithfully  for  eight  years,  including  four  years 19.  P-  24>2- 

in  the  grade  of  non-commissioned  officer,  and  shall  be 
assigned  to  their  stations  by  him. 

867.  The  Chief  of  Ordnance  may  enlist  as  many  sergeants  Of^rdna1?cemen 
of  ordnance,  corporals  of  ordnance,  and  first  and  second    Junei8,i846,c. 
class  privates  of  ordnance,  as  the  Secretary  of  War  may  July  5^1862,' £133  j 

/li«,™+  8.  3,v.  12,  p.  508, 

direct.  July  28,  1866,  c.  299,  s.  21,  v.  14,  p.  335;  June  23,  1874,  c.  458,  s. 

5,  v.  18,  p.  245 ;  Feb.  27,  1877,  c.  69,  v.  19,  p.  242.     Sec.  1162,  R.S. 

868.  The  Chief  of  Ordnance,  subject  to  the  approval  ofceJ8etailofartifi- 
the  Secretary  of  War,  shall  organize  and  detail  to  regi-  g/^v'a^los- 
ments,  corps,  or  garrisons    such  numbers  of    ordnance  Feb.'  27, ^7,0.69! 
enlisted  men,  furnished  with  proper  tools,  carriages,  and   sec.  lies',  R.S. 
apparatus,  as  may  be  necessary,  and  shall  make  regulations 

for  their  government. 

1  For  pay  and  allowances  of  ordnance-sergeants,  see  the  chapters  entitled  THE 
PAY  DEPARTMENT,  THE  QUARTERMASTER'S  DEPARTMENT,  and  THE  SUBSISTENCE 
DEPARTMENT. 


308      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

ACCOUNTABILITY  FOR  PROPERTY. 

Returns  of  869.  The  Chief  of  Ordnance  shall,  half-yearly,  or  oftener 
orFebn<8!'i8i5,  c.  if  so  directed,  make  a  report  to  the  Secretary  of  War  of  all 
Seb!  ^iaT^w!  the  officers  and  enlisted  men  in  his  department  of  the 
v'sccFii67',B.s.  service,  and  of  all  ordnance  and  ordnance  stores  under  his 
control.  Every  officer  of  the  Ordnance  Department,  every 
ordnance-store  keeper,  every  post  ordnance  sergeant,  each 
keeper  of  magazines,  arsenals,  and  armories,  every  assistant 
and  deputy  of  such,  and  all  other  officers,  agents,  or  persons 
who  shall  have  received  or  may  be  entrusted  with  any 
stores  or  supplies,  shall  quarterly,  or  oftener  if  so  directed, 
and  in  such  manner  and  on  such  forms  as  may  be  directed 
or  prescribed  by  the  Chief  of  Ordnance,  make  true  and 
correct  returns  to  the  Chief  of  Ordnance  of  all  ordnance- 
arms,  ordnance-stores,  and  all  other  supplies  and  property 
of  every  kind,  received  by  or  intrusted  to  them  and  each  of 
them,  or  which  may  in  any  manner  come  into  their  and 
each  of  their  possession  or  charge.  The  Chief  of  Ordnance, 
subject  to  the  approval  of  the  Secretary  of  War,  is  hereby 
authorized  and  directed  to  draw  up  and  enforce  in  his 
department  a  system  of  rules  and  regulations  for  the  gov- 
ernment of  the  Ordnance  Department,  and  of  all  persons 
in  said  department,  and  for  the  safe-keeping  and  preserva- 
tion of  all  ordnance  property  of  every  kind,  and  to  direct 
and  prescribe  the  time,  number,  and  forms  of  all  returns 
and  reports,  and  to  enforce  compliance  therewith.1 
Reports  of  870.  Every  officer  commanding  a  regiment,  corps,  garri- 
JFei?el1'  1815,  c.  son,  or  detachment  shall  make,  once  every  two  months,  or 


if  so  directed,  a  report  to  the  Chief  of  Ordnance, 
stating  all  damages  to  arms,  equipments,  and  implements 
belonging  to  his  command,  noting  those  occasioned  by 
negligence  or  abuse,  and  naming  the  officer  or  soldier 
by  whose  negligence  or  abuse  the  said  damages  were 
occasioned. 
cost  of  repairs  871.  The  cost  of  repairs  or  damages  done  to  arms,  equip- 

to  be   deducted 

from  pay  of  offi-  ments.  or  implements,  shall  be  deducted  from  the  pay  of 

cer  or  soldier.  ^  IT.  i 

Sec.  1803,  B.S.  any  officer  or  soldier  in  whose  care  or  use  the  same  were 
when  such  damages  occurred,  if  said  damages  were  occa- 
sioned by  the  abuse  or  negligence  of  said  officer  or  soldier. 

PURCHASES. 

Purchases  not     872.  Purchase  of  ordnance  and  ordnance  stores  and  sup- 

exceeding  $200  in 

amount;  how  plies  may  be  made  by  the  Ordnance  Department  in  open 

made.  ,      ,     .       ., 

Aug.  e,  1895,  v.  market,  in  the  manner  common  among  business  men,  when 
the  aggregate  of  the  amount  required  does  not  exceed  two 

1  For  statutory  provisions  on  the  subject  of  property  returns,  see  the  act  of  March 
29,  1894  (28  Stat.  L.,  42)  ;  see  also  the  chapter  entitled  THE  PUBLIC  PROPERTY. 


THE    MILITARY   LAWS    OF    THE    UNITED   STATES.  309 

hundred  dollars,  but  every  such  purchase  shall  be  immedi- 
ately reported  to  the  Secretary  of  War.1  Act  of  August  6, 
1895  (28  Stat.  L.,  242). 

SALES    OF    OBSOLETE,    UNSERVICEABLE,    AND    UNSUITABLE    MATERIAL. 

873.  That  from  and  after  the  passage  of  this  act  the  Sec- 

retary  of  War  be,  and  he  is  hereby,  authorized  and  directed  22 1874 
to  be  caused  to  be  sold  in  such  manner,  and  at  such  times  is,  P.  200.' 
and  places,  and  in  such  quantities,  as  shall  most  conduce 
to  the  interest  of  the  United  States,  all  .obsolete  and 
unserviceable  ammunition  and  leaden  balls,  and  the  sur- 
plus of  pig  lead  in  excess  of  two  thousand  tons  now  stored 
in  the  various  arsenals  of  the  United  States,  and  to  cause 
the  net  proceeds  of  such  sale,  after  paying  all  costs  and 
expenses  of  breaking  up  and  preparing  said  ammunition 
for  sale,  and  all  the  necessary  expenses  of  such  sale,  includ- 
ing the  cost  of  transportation  to  the  place  of  sale,  to  be 
covered  into  the  Treasury  of  the  United  States  with  full 
accounts  of  said  expenses.2  Act  of  June  22, 1874  (18  Stat. 
L.,  200). 

874.  And  the  Secretary  of  War  is  hereby  authorized,  in  s^?SSrvi^ 
his  discretion,  to  exchange  the  unserviceable  and  unsuita-  jj|«  powder  and 
ble  powder  and  shot  on  hand  for  new  powder  and  projectiles,  21Ma£gg3'  1881» v- 
or  to  sell  the  same  and  purchase  similar  articles  with  the 
proceeds  of  the  sales;  and  he  shall  make  statement  of  his 

action  under  this  provision  in  his  next  annual  report.  Act 
of  March  3,  1881  (21  Stat.  L.,  468). 

875.  That  the  Secretary  of  the  Navy  is  authorized  to  dis-  gJ^J*  U8elesa 
pose  of  the  useless  ordnance  material  on  hand  at  public  sale 
according  to  law.    *     *     *     And  in  the  case  of  the  sale  of   Proceeds  avaii- 

__         _  ,,  ,          .able  for  purchase 

like  materials  m  the  War  Department,  the  proceeds  of  of  new  material, 
which  shall  be  turned  into  the  Treasury,  an  amount  equal  is,  p. 888. 
to  the  net  proceeds  of  such  sale  is  hereby  appropriated  for 
the  purpose  of  procuring  a  supply  of  material  adapted  in 
manufacture  and  calibre  to  the  present  wants  of  the  war 
service :  And  there  shall  be  expended  in  the  War  Depart- 

>For  general  provisions  respecting  the  procurement  of  supplies  and  sei  vices,  aee 
the  chapter  entitled  CONTRACTS  AND  PURCHASES.  See.  also,  paragraphs  877-891,  post. 
For  a  rule,  similar  to  the  above,  in  respect  to  purchases  in  open  market,  see  the  act 
of  July  16, 1892  (27  Stat.  L.,  182). 

'"For  rules  respecting  the  disposition  of  damaged  stores  or  stores  that  are  unsuita- 
ble for  the  public  service,  see  the  chapter  entitled  THE  PUBLIC  PROPERTY;  for  rules 
as  to  the  disposition  of  the  proceeds  of  the  sale  of  condemned  property,  see  the  chap- 
ter entitled  THE  TREASURY  DEPARTMENT. 

CLERICAL  SERVICES. 

The  employment  of  clerical  services  in  the  Ordnance  Department  is  regulated  in 
the  annual  acts  of  appropriation.  The  amount  to  be  expended  for  such  services 
was  fixed  at  $65,000  by  the  acts  of  March  3, 1883,  July  5, 1884,  and  March  3, 1885;  at 
$60,000  by  the  acts  of  June  30,  1886,  February  9,  1887,  September  22, 1888,  March  2, 
1889,  June  13, 1890,  February  24, 1891,  July  16, 1892,  February  27, 1 
February  12, 1895,  and  March  16, 1896. 


OF  THE 

UNIVERSITY 


310 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


ment,  under  this  provision,  not  more  than  seventy-five 
thousand  dollars  in  any  one  year.1     Act  of  March  3,  1875 
(18  Stat.  L.,  388). 
Loans  or  gifts     876.  That  the  Secretary  of  War  and  the  Secretary  of  the 

of  condemned  -I-JI-T  .  • 

ordnance,  etc.,  Navy  are  each  hereby  authorized,  in  their  discretion,  to 
May  22, 1896,  v.  loan  or  give  to  soldiers'  monument  associations,  posts  of  the 

29,  p.  133.  Grand  Army  of  the  Republic,  and  municipal  corporations 

condemned  ordnance,  guns,  and  cannon  balls  which  may 
not  be  needed  in  the  service  of  either  of  said  Departments. 
Such  loan  or  gift  shall  be  made  subject  to  rules  and  regu- 
lations covering  the  same  in  each  Department,  and  the 
Government  shall  be  at  no  expense  in  connection  with  any 
such  loan  or  gift.  Act  of  May  22,  1896  (29  Stat.  £.,  133). 


THE  BOARD  OF  ORDNANCE  AND  FORTIFICATION. 


Par. 

877. 


878. 
879. 
880. 
881. 


884. 


25,p?489.  ' 


Duties. 


Board  of  Ordnance  and  For- 
tification; duties;  expend- 
itures. 

Additional  civilian  member. 

Annual  report. 

Investigations  by  the  Board. 

Proving  ground  at  Sandy 
Hook. 

Expenses  of  officers,  etc.,  at 
proving  ground. 

Purchases  to  be  of  American 
manufacture;  exception. 

No  member  to  be  interested 
in  device, etc.,  before  Board. 


Par. 

885. 
886. 

887. 


890. 
891. 


Right  to  use  inventions. 

Contracts  for  steel  guns  of 
large  caliber  authorized. 

Contracts  for  breach-loading 
mortar  of  mortar  steel  au- 
thorized. 

Contracts  for  steel  forgings 
authorized. 

Caliber,  etc  ,  of  guns  required 
for  service  to  be  determined 
by  Secretary  of  War. 

Public  tests  of  rifled  cannon. 

Sale  of  smoothbore  cannon 
for  experimental  purposes. 


the  appropriations  hereinafter  provided  for 
shall  be  available  until  expended  and  shall  be  expended 
under  the  direct  supervision  of  a  board  to  consist  of  the 
commanding  General  of  the  Army,  an  officer  of  Engineers, 
an  officer  of  Ordnance,  and  an  officer  of  Artillery,  to  be 
selected  by  the  Secretary  of  War,  to  be  called  and  known 
as  the  Board  of  Ordnance  and  Fortification;  and  said 
Board  shall  be  under  the  direction  of  the  Secretary  of  War 
and  subject  to  his  supervision  and  control  in  all  respects, 
and  shall  have  power  to  provide  suitable  regulations  for 
the  inspection  of  guns  and  materials  at  all  stages  of  manu- 
facture to  the  extent  necessary  to  protect  fully  the  interests 
of  the  United  States,  and  generally  to  provide  such  regula- 
tions concerning  matters  within  said  Board's  operations  as 
shall  be  necessary  to  carry  out  to  the  best  advantage  all 
duties  committed  to  its  charge:  Provided,  That  subject  to 

1  The  authority  conferred  by  this  statute  was  repealed,  as  to  the  Secretary  of  the 
Navy,  by  section  2  of  the  act  of  August  5, 1882  (22  Stat.  L.,  284). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  311 

the  foregoing  provisions  the  expenditure  shall  be  made  by    Expenditures. 
the  several  bureaus  of  the  War  Department  having  juris- 
diction of  the  same  under  existing  law.    Act  of  September 
22,  1888  (25  Stat.  L.,  489}. 

878.  N  And  one  additional  member  shall  be  added  to  said  1  ci 


Board  of  Ordnance  and  Fortification  who  shall  be  a  civilian  Feb.  24, 
and  not  an  ex-officer  of  the  regular  Army  or  Navy,  and  he 
shall  be  nominated  by  the  President,  and  by  and  with  the 
advice  and  consent  of  the  Senate,  appointed,  and  shall  be 
paid  a  salary  of  five  thousand  dollars  per  annum  and  actual 
traveling  expenses  when  traveling  on  duty.  Act  of  Febru- 
ary 24,  1891  (26  Stat.  £.,  769). 

879.  That  the  Board  of  Ordnance  and  Fortification  shall    Annual  report. 
make  an  annual  report  to  Congress  through  the  Secretary  of 

War,  on  the  first  Monday  in  December  in  each  year,  show- 
ing the  general  operations  of  the  Board  and  shall  give  a 
detailed  statement  of  all  contracts,  allotments  and  expend- 
itures made  by  the  Board  ;  the  first  of  these  reports  to  cover 
these  subject  matters  from  the  beginning  of  the  operations 
by  the  Board  until  the  first  report  which  they  shall  make. 
Ibid. 

880.  The  Board  is  authorized  to  make  all  needful  and    investigations 
proper  purchases,  investigations,  experiments,  and  tests,  bysec.62Bsept.'  22, 
to  ascertain  with  a  view  to  their  utilization  by  the  Govern-  1888>  V-25»P-491- 
ment,  the  most  eifective  guns,  including  multicharge  guns 

and  the  conversion  of  Parrott  and   other  guns  on  hand, 

small  arms,  cartridges,  projectiles,  fuzes,  explosives,  torpe- 

does, armor-plates,  and  other  implements  and  engines  of 

war;    and  the  Secretary  of  War  is  hereby  authorized  to 

purchase  or  cause  to  be  manufactured,  such  guns,  carriages, 

armor-plates,  and  other  war  materials  and  articles  as  may, 

in  the  judgment  of  said  Board,  be  necessary  in  the  proper 

discharge  of  the  duty  herein  devolved  upon  them:  Pro- 

vided, That  the  amount  expended  and  liabilities  incurred 

in  such  purchases,  investigations,  experiments,  and  tests 

shall  not  exceed  five  hundred  thousand  dollars  which  sum 

is  hereby  appropriated  :  Provided  further,  That  said  Board 

shall  test,  and  if  found  satisfactory,  shall  purchase  two 

breach  loading  field  guns  of  three  and  two  tenths  inch  bore    Aluminum 

of  aluminum  bronze.1     Sec.  2,  act  of  September  22,  1888  (25  bronzesuns- 

Stat.  L.,  491). 

JBy  several  acts  of  appropriation  the  powers  of  the  Board  of  Ordnance  and  Fortifi 
cation  have  been  reduced  and  defined.  By  the  act  of  February  24,  1891  (26  Stat.  L., 
767)  ,  the  appropriations  of  the  Engineer  Department,  for  gun  and  mortar  batteriea  and 
for  sites  of  fortifications,  have  been  withdrawn  from  the  supervision  of  the  Board  ; 
by  the  act  of  July  23,  1892  (27  Stat.  L.,  260),  all  regular  appropriations  of  the  Ordnance 
Department  for  the  armament  of  fortifications  were  similarly  withdrawn  from  its 
supervision.  See,  also,  the  acts  of  February  18,  1893  (27  Stat.  L.,  461),  August  1,  1894 
(28  Ibid.,  215),  March  2,  1895  (Ibid.,  706),  and  J  une  6,  1896  (29  Ibid.,  259),  for  similar  pro- 
visions of  statutes  in  which  the  Board  is  specially  charged  with  the  supervision  of 
stated  funds  and  with  the  general  expenditure  of  funds  appropriated  for  experimental 
purposes. 


312  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

881.  The  Board  of  Ordnance  and  Fortification  is  hereby 
directed  to  examine  and  report  upon  a  site  or  sites  for 

Proving  ground 

at  sandy  Hook,  ordnance  testing  and  proving  ground  to  be  used  in  the 

Mar.  2,  1889,  v. 

25,  p.  833.  testing  and  proving  of  heavy  ordnance,  having  in  view  in 

the  selection  of  said  site  or  sites  their  accessibility  by  land 
and  water,  means  of  transportation,  and  suitability  for  the 
purpose  intended,  and  also  the  actual  and  reasonable  cost, 
and  value  of  the  land  embraced  in  said  site  or  sites  and 
the  least  sum  for  which  the  same  can  be  procured.  Said 
Board  shall  report  thereon  to  the  Secretary  of  War,  to  be 
submitted  to  Congress  at  its  next  session  ;  and  in  case  the 
said  Board  shall  select  a  site  or  sites  and  recommend  their 
purchase,  the  Secretary  of  War  is  hereby  authorized  to 
secure  written  proposals  for  the  sale  of  the  land  so  recom- 
mended, until  such  time  as  Congress  may  act  upon  the 
recommendation  of  said  Board  and  of  the  Secretary  of 
War.1  Act  of  March  2,  1889  (25  Stat.  L.,  833). 


at     ®^§  ^or  Pavment  °f  tne  necessary  expenses  of  the  Board, 


a  Per  them  allowance  to  each  officer  detailed  to 
26,  p.  768.  serve  thereon  when  employed  on  duty  away  from  his  per- 

manent station,  of  two  dollars  and  fifty  cents  a  day,  *  *  * 
one  hundred  thousand  dollars.2  Act  of  August  1,  1894  (28 
Stat.  L.,  215). 

bePofCAamerican     883-  Tnat  a11  material  purchased  under  the  foregoing 

m^cevtio*       provisions  of  this  act  shall  be  of  American  manufacture, 

27Jul26o3'  18®2fV>  except  in  cases  when,  in  the  judgment  of  the  Secretary  of 

War,  it  is  to  the  manifest  interest  of  the  United  States  to 

make  purchases  in  limited  quantities  abroad,  which  mate- 

rial shall  be  admitted  free  of  duty.1    Act  of  July  23,  1892 

(27  Stat.  L.,  260). 

1  To  enable  the  Secretary  of  War,  in  his  discretion,  to  purchase  the  land  adjoining 
the  Government  reservation  at  Sandy  Hook,  New  Jersey,  now  belonging  to  the  gran- 
tees of  the  Highland  Beach  Association  of  New  Jersey,  together  with  the  right  of 
way  from  said  land  to  the  main  line  of  the  Central  Railroad  Company  of  New  Jersey, 
together  with  the  rails,  ties,  switches,  and  all  the  railroad  equipment  on  said  lands, 
twenty-five  thousand  dollars,  or  so  much  thereof  as  may  be  necessary.    Act  of  July 
23,  1892  (  27  Stat.  L.,  259). 

That  the  President  is  hereby  authorized  .to  appoint  a  board,  to  consist  of  three 
officers  of  the  Army  and  three  officers  of  the  Navy,  who  shall  examine  and  report 
to  the  Secretary  of  War  for  transmission  to  Congress  for  its  consideration  what,  in 
their  opinion,  is  the  most  suitable  site  on  the  Pacific  Coast  or  on  the  rivers  or  other 
waters  thereof,  for  the  erection  of  a  plant  for  finishing  and  assembling  the  parts  of 
heavy  guns  and  other  ordnance  for  the  use  of  the  Army  and  Navy.  That  for  the 
payment  of  the  necessary  expenses  of  the  board  to  be  appointed  under  the  foregoing 
provisions  the  sum  of  two  thousand  five  hundred  dollars  is  hereby  appropriated  out 
of  any  money  in  the  Treasury  not  otherwise  appropriated.  Act  of  July  23,  1892 
(27  Stnt.  XJM  258). 

2  For  a  similar  provision  see  the  acts  of  February  24,  1891  (26  Stat.  L.,  768)  ;  July  23, 
1892  (27  Stat.  L.,  259)  ;  February  18,  1893  (27  Stat.  L.,  400)  ;  March  2,  1895  (28  Stat.  L., 
706),  and  Juno  6,  1896  (29  Stat.  L.,  259).     The  several  acts  of  appropriation  since 
that  of  July  23,  1892,  contain   provisions  for   similar  allowances  to  each  officer 
detailed  to  serve  on  the  Board  of  Ordnance  and  Fortification  when  on  duty  away 
from  his  permanent  station.    The  acts  of  appropriation  since  that  of  August  4,  1894, 
contain  provisions  for  the  necessary  traveling  expenses  of  the  civilian  member  of 
the  board  when  traveling  on  duty  as  contemplated  in  the  act  of  February  24,  1891. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  313 

884,  That  hereafter  no  person  shall  be  a  member  of  or  u  No  member  to 

be  interested  in 

serve  on  said  Board  who  has  been  or  is  m  any  manner  device,  etc.,  be- 

.     .  *  fore  Board. 

interested  in  any  invention,  device,  or  patent  which,  or    Feb.  is,  1393,  v. 
anything  similar  to  which,  has  been  considered  or  may  be    >p'4 
considered  by  or  come  before  said  Board  for  test  or  adop- 
tion; or  who  is  connected  with  or  in  the  employ  of  any 
manufacturer  who  has  or  shall  have  contracts  with  the 
United  States  for  any  ordnance  materials.    Act  of  February 
18,  1893  (27  Stat.  L.,  461). 

885,  That  before  any  money  shall  be  expended  in  the  j^fj*  J°  U8e 
construction  or  test  of  any  gun,  gun  carriage,  ammunition,    Aug.  i,  ISM,V. 
or  implements  under  the  supervision  of  the  said  Board,  the28'p<21i 
Board  shall  be  satisfied,  after  due  inquiry,  that  the  Gov- 
ernment of  the  United  States  has  a  lawful  right  to  use  the 
inventions  involved  in  the  construction  of  such  gun,  gun 
carriage,  ammunition,  or  implements,  or  that  the  construc- 
tion or  test  is  made  at  the  request  of  a  person  either  having 

such  lawful  right  or  authorized  to  convey  the  same  to  the 
Government.  Act  of  August  1,  1894  (28  Stat.  L.,  215). 

886,  That  the  Secretary  of  War  is  hereby  authorized    contract  for 
and  directed  to  purchase  under  contract,  after  due  adver-  J ™7ihg°uan I nof 
tisement  inviting  proposals,  and  at  prices  which  the  Board  lKlZetjliber  au' 
of  Ordnance  and  Fortification  shall  adjudge  to  be  fair  to  18fjc;22<?^g3i9' 
the  manufacturer  and  for  the  interest  of  the  United  States, 
twenty-five    eight  inch,    fifty  ten-inch,    and    twenty-five 

twelve  inch  guns,  all  of  which  guns  shall  be  breech-load- 
ing single  charge  steel  guns,  and  of  weight  and  dimensions 
to  be  prescribed  by  the  Board,  and  shall  fulfill  the  condi- 
tions hereinafter  provided :  Provided,  That  if  two  or  more 
persons,  citizens  of  the  United  States,  submit  proposals  to 
furnish  said  guns,  either  in  part  or  in  whole,  at  prices  not 
materially  different  from  each  other,  contracts  may  be 
awarded,  in  such  proportion,  among  the  citizens  submit- 
ting such  proposals  as  the  Secretary  of  War  may  direct. 
One  type  gun  of  each  of  the  above-mentioned  caliber,  with 
the  proper  supply  of  ammunition  therefor,  shall  be  pre- 
sented for  test  at  such  place  and  within  such  time  as  the 
contract  shall  provide,  and  shall  be  subjected  to  such  tests 
in  respect  to  accuracy,  range,  power,  endurance,  and  general 
efficiency  as  the  Board  of  Ordnance  and  Fortification  shall 
have  prescribed.  All  the  other  guns  of  each  caliber,  with 
the  proper  supply  of  ammunition,  shall  be  delivered  at  such 
place  and  within  such  times  as  the  contract  shall  provide, 
and  shall  be  subjected  to  the  ordinary  service  test  of  ten 

'The  acts  of  February  18,  1893  (27  Stat.  L.,  461),  August  1,  1894  (28  Stat.  L.,215), 
March  2,  1895  (28  Stat.  L.,  706),  and  June  6,  1896  (29  Stat.  L.,260)  contain  the  same 
provisions. 


314  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

rounds  with  the  full  charge  and  weight  of  projectile,  which 
shall  develop  the  standard  power  prescribed  for  the  gun. 
If  the  type  gun  sustains  the  prescribed  test  to  the  satisfac- 
tion of  the  Board  of  Ordnance  and  Fortification,  it  and 
each  of  the  other  guns  which  sustains  the  ordinary  service 
test,  and  the  ammunition  expended  in  such  tests,  shall  be 
accepted  under  the  contract.  All  guns  manufactured 
under  these  contracts,  including  the  type  guns,  shall  be 
subjected  to  inspection  at  all  stages  of  manufacture,  and 
no  change  whatever  shall  be  made  in  the  material,  mode 
of  manufacture,  or  dimensions  of  the  guns  for  service  from 
those  employed  in  the  type  gun  without  the  approval  of 
the  Secretary  of  War.  Payment  for  each  gun  and  ammu- 
nition for  testing  same,  including  cost  of  transportation, 
shall  be  made  upon  the  satisfactory  completion  of  the  pre- 
scribed test  for  that  gun.  All  tests  of  guns  shall  be  made 
in  the  presence  of  the  Board  and  of  the  person  presenting 
the  gun,  or  his  authorized  agent,  and  due  regard  shall  be 
paid  to  suggestions  offered  by  him  which  respect  the  mode 
of  making  such  test. 
Maximum  ex-  That  under  the  provisions  of  this  section  there  shall  not 

penditurea. 

be  expended  or  contract  or  contracts  entered  into  involv- 
ing the  Government  in  an  aggregate  expenditure  exceeding 
three  million  seven  hundred  and  seventy-five  thousand 
dollars,  nor  an  expenditure  on  the  part  of  the  Government 
Americanman-  in  any  one  fiscal  year  in  excess  of  one  million  dollars.  And 

uiacture,  etc. 

all  guns  and  materials  purchased  under  the  authority  of 

this  section  shall  be  of  American  manufacture  and  fur- 

nished by  citizens  of  the  United  States:  Provided  further, 

ciJcaxooaa?  con  ^na^  contracts  may  be  made  for  not  exceeding  one-fourth 

tracts.  of  the  guns  herein  provided  for,  to  be  constructed  on  the 

Pacific  coast,  in  the  discretion  of  the  Secretary  of  War. 

Sec.  2,  act  of  August  18,  1890  (26  Stat.  L.,  319). 


26Feb772o4'  1891'  v'  ^na^  section  two  of  "An  act  making  appropriations  for 
fortifications  and  other  works  of  defense,  for  the  armament 
thereof,  for  the  procurement  of  heavy  ordnance  for  trial 
and  service,  and  for  other  purposes,"  approved  August 
eighteenth,  eighteen  hundred  and  ninety,  is  hereby  modi- 
fied and  enlarged  so  that  the  amount  authorized  to  be 
expended  thereunder  be  increased  to  four  million  two  hun- 
dred  and  fifty  thousand  dollars,  to  be  expended  on  the  terms 
and  conditions  and  for  the  purposes  therein  set  forth,  ex- 
cept that  fifty  thousand  of  said  sum  shall  be  reserved  to 
cover  all  expenses  other  than  the  powder  and  projectiles 
incident  to  the  tests  and  inspection  of  the  guns,  and  also 
that  the  Secretary  of  War  be  authorized  to  contract  there- 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  315 

under  for  such  less  number  of  guns  than  one  hundred  as    Decreased 

0  number  of  heavy 

he  may  deem  for  the  best  interests  of  the  Government.1  fJJ88edQaybepur" 
Act  of  February  24,  1891  (26  Stat.  L.,  770). 

887.  That  whenever  any  party  shall  present  for  test  a    Contract  for 
completed  breech-loading  mortar  of  twelve  inches  caliber,  iner       ' 


of  not  more  than  forty  thousand  pounds  weight,  built 
mortar  steel,  with  a  proper  supply  of  ammunition  therefor, 
not  exceeding  two  hundred  rounds,  such  mortar  shall  be 
tested  by  the  Board  of  Ordnance  and  Fortification,  and 
should  it  be  shown  to  the  satisfaction  of  said  Board  of 
Ordnance  and  Fortification  by  such  test  to  be  at  least  equal 
in  accuracy,  range,  power,  endurance,  material,  and  general 
efficiency  to  the  best  breech  loading  service  mortar  in  use, 
the  mortar  and  ammunition  shall  be  paid  for,  including 
cost  of  transportation,  and  a  contract  shall  be  made  for  a 
further  supply  of  fifty  and  no  more,  at  such  reasonable 
cost  as  the  Board  of  Ordnance  and  Fortification  shall 
determine,  not  to  exceed  six  thousand  five  hundred  dollars 
each,  the  entire  number  to  be  delivered  in  one  year  from 
date  of  contract.  Said  mortar,  and  all  which  may  be  con- 
tracted for  under  this  provision,  shall  be  subject  to  inspec- 
tion at  each  stage  of  manufacture.  Sec.  2,  act  of  March  2, 
1895  (28  Stat.  L.,  707). 

888.  That  contracts  shall  be  invited  by  the  Secretary  of   contracts   for 

manufacture    of 

War  by  proper  notice  and  publication  for  the  inanufac-  forgings,  etc. 

Aug.  18,   1890, 

ture  (finishing  and  assembling)  of  eight-inch,  ten-inch,  and  v.26,p.3i7;  sept. 

twelve-inch  steel  sea-coast  guns  from  forgings  procured  489-491!  v> 

under  fortification  act  of  September  twenty-second,  eight- 

een hundred  and  eighty-eight,  and  if  private  parties  shall 

offer  to  finish,  assemble,  and  deliver  any  of  such  guns  in 

proper  condition  for  use  as  completed  guns,  at  a  price  fair 

to  the  Government,  the  necessary  contracts  shall  be  entered 

into  by  the  Secretary  for  that  purpose,  and  to  carry  into 

effect  this  provision  the  sum  of  two.  hundred  thousand 

dollars  is  hereby  appropriated  :  Provided,  That  the  finish- 

ing and  assembling  of  not  over  fifty  per  centum  of  each 

caliber  of  such  forgings  shall  be  thus  contracted  for  :  Pro- 

vided further,  That  all  contracts  made  hereunder  shall  be 

so  made  as  to  fully  protect  the  Government  against  all  loss 

or  damage  which  may  result  from  imperfect  work,  the  fault 

of  the  contractor,  and  the  work  done  hereunder  shall  be 

subject  to  inspection  at  every  stage.    Act  of  August  18, 

1890  (26  Stat.  L.,  317). 

'Section  6  of  the  act  of  September  22,  1888  (25  Stat.  L.,  490),  contained  a  similar 
offer,  in  respect  to  the  presentation  for  test  of  cast-iron  breech-loading  mortars  of  12 
inches  caliber  and  breech-loading  steel  guns  of  10  and  12  inches  caliber,  which  was 
withdrawn  as  to  the  cast  iron  breech-loading  mortara  by  section  3  of  the  act  of 
March  2,  1895  (28  Stat.  L.,  707). 


316  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

caUber^etc,o|     g89.  It  shall  be  the  duty  of  the  Secretary  of  War  to 
for  service  to  be  cause  the  various  calibers,  lengths  of  bore,  greatest  and 

determined    by  ,          ' 

Secretary  of  least  admissible  weights  of  guns  for  each  caliber,  together 
juiy  5,  1884,  >-.  with  the  greatest  and  least  weights  of  projectiles  for  each 

23,  p.  159.  caliber,  of  all  the  various  calibers  required  for  the  service, 

together  with  the  number  of  each  caliber  of  gun  required, 
to  be  determined,  and  to  make  the  same  known  to  manu- 
facturers of  ordnance  on  their  application  and  to  report 
the  same  to  Congress  at  its  next  session  for  its  approval. 
Act  of  July  5,  1884  (23  Stat.  L.,  159). 

BOARD   FOB   TESTING  RIFLED   CANNON. 

rifedbcannosnt8etcf  89°-  That  hereafter  all  rifled  cannon  of  any  particular 
sec.2,i&id.  material,  caliber,  or  kind,  made  at  the  cost  of  the  United 
States,  shall  be  publicly  subjected  to  the  proper  test, 
including  such  rapid  firing  as  a  like  gun  would  be  likely  to 
be  subjected  to  in  actual  battle,  for  the  determination  of 
the  endurance  of  the  same  to  the  satisfaction  of  the  Presi- 
dent of  the  United  States  or  such  persons  as  he  may 
select;  and  he  is  hereby  authorized  to  select  not  to  exceed 
five  persons,  who  shall  be  skilled  in  such  matters  ;  and  if 
such  gun  shall  not  prove  satisfactory,  they  shall  not  be 
put  to  use  in  the  Government  service.  Sec.  2,  ibid. 
b<S5lecM5SS°for  891<  That  tlie  Secretary  of  War  and  the  Secretary  of  the 
enpeoisl  ental  Navy  are  hereby  authorized  to  sell  to  projectors  of  methods 
sec,3,ii>td.  of  conversion,  for  experimental  purposes  only,  any  smooth- 
bore cannon  on  hand  required  by  them,  at  prices  which 
shall  not  be  less  than  have  been  received  from  auction 
sales  for  such  articles,  and  deliver  the  same,  at  the  cost  of 
the  Government,  at  the  nearest  convenient  place  for  ship- 
ment or  public  transportation  ;  the  cost  of  delivery  to  be 
deducted  from  the  proceeds  of  sales,  and  the  balance  to 
be  covered  into  the  Treasury  of  the  United  States.  Sec. 
3,  ibid. 


THE   UNITED   STATES   TESTING  MACHINE. 


Par. 


892.  The    United    States    testing 
machine. 


Par. 


895.  Advance  payments    may  be 
required  for  tests ;  record  of 


893.  No  compensation  for  officers  I  tests  shall  be  furnished  to 


of  the  United  States. 
834.  Tests    to  be  made;    use  of 


American  Society  of  Civil 
Engineers. 


machine. 

The  United  892<  Tbat  for  experiments  in  testing  iron  and  steel,  in- 
macMne-^oSS  eluding  the  cost  of  any  machine  built  for  such  purpose,  the 
is?!  °v  4is^a399  • 8um  °^  ^^  thousand  dollars  is  hereby  appropriated  j  and 

Mar',3,'l873,v,17,'p.543. 


THE   MILITARY   LAWS    OF   THE   UNITED   STATES.  317 

the  farther  sum  of  twenty-five  thousand  dollars  provided 
"for  improved  machinery  and  instruments  for  testing 
American  iron  and  steel"  in  the  act  entitled  "An  act  mak- 
ing appropriations  for  the  support  of  the  Army  for  the  year 
ending  June  thirtieth,  eighteen  hundred  and  seventy-four," 
approved  March  third,  eighteen  hundred  and  seventy- 
three,  is  hereby  continued  and  made  available  for  such 
purpose  ;  and  that  the  President  be,  and  hereby  is  author- 
ized to  appoint  a  board,  to  consist  of  one  officer  of  the 
engineers  of  the  United  States  Army,  one  officer  of  ord- 
nance of  the  United  States  Army,  one  line-officer  of  the 
United  States  Navy,  one  engineer  of  the  United  States 
Navy,  and  three  civilians  who  shall  be  experts;  and  it 
shall  be  the  duty  of  said  board  to  convene  at  the  earliest 
practicable  moment,  at  such  place  as  may  be  designated 
by  the  President,  for  the  purpose  of  determining,  by  actual 
tests,  the  strength  and  value  of  all  kinds  of  iron,  steel  and 
other  metals  which  may  be  submitted  to  them  or  by  them 
produced,  and  to  prepare  tables  which  will  exhibit  the 
strength  and  value  of  said  materials  for  constructive  and 
mechanical  purposes,  and  to  provide  for  the  building  of  a 
suitable  machine  for  establishing  such  tests.  Sec.  4,  act  of 
March  3,  1875  (18  Stat.  L.,  399). 

893.  That  no  officers  in  the  pay  of  the  Government  shall  be    N°  compensa- 

.j,,^,,  ,-,.,.  tion  to  officers  of 

entitled  to,  or  receive,  any  additional  compensation  by  rea-  the     United 


son  of  any  services  rendered  in  connection  with  this  board; 

but  one  of  the  civil  experts  shall  act  as  secretary  of  the    secretary. 

board,  and  shall  be  entitled,  under  this  act  to  such  com- 

pensation as  the  President  may  deem  proper  and  fit:  Pro- 

vided, That  not  more  than  fifteen  thousand  dollars  of  the 

sum  herein  provided  shall  be  used  for  the  expenses  of  such 

board.1    Ibid. 

894.  That  the  Secretary  of  War  is  hereby  authorized  to  A^^g. 
cause  the  machine  built  for  testing  iron  and  steel  to  be  set  machine.  ' 

,,.,,,,  -,,/.,,  June  20,  1878, 

up  and  applied  to  the  testing  of  iron  and  steel  lor  all  per-  v.  20,  p.  223. 
sons  who  may  desire  to  use  it,  upon  the  payment  of  a  suit- 
able fee  for  each  test  ;  the  table  of  fees  to  be  approved  by 
the  Secretary  of  War,  and  to  be  so  adjusted  from  time  to 
time  as  to  defray  the  actual  cost  of  the  tests  as  near  as  may 
be.  Act  of  June  20,  1878  (20  Stat.  £-.,  223).  That  hereafter 
the  tests  of  iron  and  steel  and  other  materials  for  industrial 
purposes  shall  be  continued,  and  report  thereof  shall  be 
made  to  Congress.  Act  of  March  5,  1885  (23  Stat.  L.,  502). 

iThe  act  of  March  3,  1873  (17  Stat.  L.,  543),  contained  an  appropriation  of  $25,000 
for  "improved  machinery  and  instruments  for  testing  American  iron  and  steel." 


318 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 


Advance  pay-     895.  That  in  making  tests  for  private  citizens  the  officer 

ments  may  be  re-  ,  , 

quired.   Record  in  charge  may  require  payment  in  advance,  and  may  use 


the  funds  so  received  in  making  such  private  tests,  niak- 
full  report  thereof  to  the  Chief  of  Ordnance;  and  the 
.'  1882>V'  Chief  of  Ordnance  shall  give  attention  to  such  programme 
of  tests  as  may  be  submitted  by  the  American  Society  of 
Civil  Engineers,  and  the  record  of  such  tests  shall  be  fur- 
nished said  society  to  be  by  them  published  at  their  own 
expense.1  Act  of  June  30,  1882  (22  Stat.  L.,  122}. 


ARMS,  ARMORIES,  AND  ARSENALS. 


Par. 

896.  Armories,  officers,  workmen. 

897.  Pay  of  officers,  clerks,  etc.,  at 

armories. 

898.  When  paid ;  who  to  give  bond. 

899.  Annual  accounts  to  Congress. 

900.  Arsenals  may  be  abolished. 

901 .  Distribution  of  arms  to  States, 

etc. 

902.  Enticing     away     workmen; 

penalty. 

903.  Workmen  guilty  of  certain 

misconduct. 

904.  Distribution  of  arms  to  States 

which  had  not  received  their 
quota  from  1862  to  1869. 

905.  Exemption  from    service  as 

jurors. 


Par. 

906.  Springfield     breech -loading 

system  to  be  used  for  mus- 
kets and  carbines. 

907.  No  royalty  to    be    paid   by 

United  States  to  its  officers 
for  patent  mentioned  in 
preceding  section. 

908.  No  money  to  be  expended  in 

pefecting  inventions. 

909.  Magazine  arms :  Board  of  offi- 

cers to  test. 

910.  Manufacture     of     magazine 

arms. 

911.  The  same. 

912.  Arms  for  militia. 

912a.  Issues  of  arms,  etc.,  to  Execu- 
tive Departments. 


clerks 


Armories,  offl-     §96.  At  each  arsenal  there  shall  be  established  a  national 

cers,  workmen. 

Apr.  2,  1794,  c.  armory,  in  which  there  shall  be  employed  one  supermtend- 
Apr.  23,'  1808,  c!  ent,  who  shall  be  an  officer  of  the  Ordnance  Department, 
Aug.V'i'^^cl  to  be  designated  by  the  President;  one  master-armorer, 
578-  Aafjuai,  wno  sna11  be  appointed  by  the  President,  and  as  many 
c.57,  s  5,v.i2,  p.  workmen  as  the  Secretary  of  War  may,  from  time  to  time, 

sec.  1662,  B.S.  deem  necessary. 

®^*  ^^e  or(lnance  officer  in  charge  of  any  national  ar- 

Au23  1842  c  mory  sna^  receive  BO  compensation  other  than  his  regular 
i86,s.2,v.5,p.5i2ipay  as  an  officer  of  the  corps:  the  master-  armorers  shall 

Mar.3,  1857.C.106,  F    J  . 

s.  3  v.  11,  p.  203;  receive  fifteen  hundred  dollars  per  annum  each  :  the  mspect- 

Aug.  6,  1861,c.  57,  -,-,i_  ,          •i.L-.-i-.in 

s.  57v.i2,  p.  3i8;ors  and  clerks,  each,  eight  hundred  dollars  per  annum, 
i67,rs.  12,  v8  14,  p!  except  the  clerks  of  the  armory  at  Springfield,  Massachu- 
t67i;sf  pn282.'1874'  setts,  who  shall  receive  sixteen  hundred  and  fifty  dollars 

Sec.  1663,  B.S.  per  ammm> 

several  compensations  fixed  by  the  preceding 
Aug.  23,  1842,  c.  section  for  master-  armorer  s  and  inspectors  shall  be  paid 

186,8.2,  v.  5  p.512. 

sec.  1664,  B.  s.  quarter-yearly.    All  military  store-keepers  and  paymasters 


'The  acts  of  March  3,  1883  (22  Stat.  L.,  460),  July  5,  1884  (23  Stat.  L.,  112),  and 
March  3, 1885  (23  Stat.  L.,  502),  contain  a  similar  provision. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      319 

shall  give  bond  and  security  for  the  faithful  discharge  of 
their  duties,  in  such  sum  as  may  be  prescribed  by  the 
Secretary  of  War. 

899.  An  annual  account  of  the  expenses  of  the  national    A»nuai  ac- 

counts to  Con- 


armories  shall  be  laid  before  Congress,  together  with 

account  of  the  arms  made  and  repaired  therein.  Hs.vv.Xp.  352! 

900.  The  Secretary  of  War  is  authorized  to  abolish  such    ArsenaisVay 
of  the  arsenals  of  the  United  States  as,  in  his  judgment,    Mar.  '3,  11353,0. 

J  '98,8.  l,v.  10.  op. 

may  be  useless  or  unnecessary.  214,  217. 

901.  All  the  arms  procured  in  virtue  of  any  appropri-    Distribution  of 

arms   to   States, 

ation  authorized  by  law  for  the  purpose  of  providing  arms  etc. 

and  equipments  for  the  whole  body  of  the  militia  of  thess.sa.V.ip  m] 

United  States  shall  be  annually  distributed  to  the  several  a.  Tv.'io,  P!  639.  ' 

States  of  the  Union  according  to  the  number  of  their  Kep-    ' 

resentatives  and  Senators  in  Congress,  respectively;  and 

all  arms  for  the  Territories  and  for  the  District  of  Columbia 

shall  be  annually  distributed  in  such  quantities,  and  under 

such  regulations,  as  the  President  may  prescribe.    All  such 

arms  are  to  be  transmitted  to  the  several  States  and  Terri- 

tories by  the  United  States. 

902.  If  any  person  procures  or  entices  any  artificer  or    Enticing  away 

,  .     .        ,  -i  -i    •  -i  workmen  ;  p  e  n- 

workman,  retained  or  employed  in  any  arsenal  or  armory,  aity. 

to  depart  from  the  same  during  the  continuance  of  his  en-  to^i  v!  afpJei!' 

gagement,  or  tfo  avoid  or  break  his  contract  with  the  United    Sec>  1668'  B*  s* 

States,  or  if  any  person,  after  due  notice  of  the  engagement 

of  any  such  workman  or  armorer,  during  the  continuance 

of  such  engagement,  retains,  hires,  or  in  anywise  employs, 

harbors,  or  conceals  such  artificer  or  workman,  he  shall  be 

fined  not  more  than  fifty  dollars,  or  be  imprisoned  not  more 

than  three  months. 

903.  If  any  artificer  or  workman,  hired,  retained,  or  em-    working  men 

J  guilty  of  certain 

ployed  in  any  public  arsenal  or  armory,  wantonly  and  care-  misconduct. 
lessly  breaks,  impairs,  or  destroys  any  implements,  tools,  46,  s.  3,  v!  2,  p.  62. 
or  utensils,  or  any  stock,  or  materials  for  making  guns,  the 
property  of  the  United  States,  or  willfully  and  obstinately 
refuses  to  perform  the  services  lawfully  assigned  to  him, 
pursuant  to  his  contract,  he  shall  forfeit  a  sum  not  exceed-     . 
ing  twenty  dollars  for  every  such  act  of  disobedience  or 
breach  of  contract,  to  be  recovered  in  any  court  having 
competent  jurisdiction  thereof. 

904.  The  Secretary  of  War  is  authorized  and  directed  to  ^/^"sSes 
distribute  to  such  States  as  did  not  receive  the  same,  their  which  hadu  not 

received   their 

proper  quota  of  arms  and  military  equipment  for  each  year,  quota  from  1862 
from  eighteen  hundred  and  sixty-two  to  eighteen  hundred  Var.'s,  ISTS,  c. 
and  sixty-nine,  under  the  provisions  of  section  sixteen  hun- 
dred  and  sixty-one  :  Provided,  That  in  the  organization  and 
equipment  of  military  companies  and  organizations  with 


320  THE   MILITARY  LAWS   OF  THE   UNITED   STATES. 

such  arms,  no  discrimination  shall  be  made  between  com- 
panies and  organizations  on  account  of  race,  color,  or  former 
condition  of  servitude.1 

fron?  service  °M     ®^'  ^^  artificers  and  workmen  employed  in  the  armo- 
r*es  an(^  arsenals  °f  ^ne  United  States  shall  be  exempted, 


1800  c 
46,  s.  4,  v.  2,  p  .62  1  during  their  time  of  service,  from  service  as  jurors  in  any 

Mar.3,1855  c.169, 
8.  7,  v.  10,  p.  639.  COUrt. 
Sec.l67f,R.S. 

Springfield  906.  The  breech-loading  system  for  muskets  and  carbines 
system  to  be  unadopted  by  the  Secretary  of  War  known  as  "the  Spriug- 
carbTnUeS8ket  Qd  field  breech-loading  system,"  is  the  only  system  to  be  used 
3i6,T6i7,  1p?  lei!  by  the  Ordnance  Department  in  the  manufacture  of  mus- 

Sec.i672,R.s.kets  aild  carbines  for  the  military  service.2 

shall  be  paid  by  the  United  States  to 


ed  "states  to  its  any  one  of  its  officers  or  employes  for  the  use  of  any  patent 

officers  for  pat-        * 

ent  mentioned  in  for  the  system,  or  any  part  thereof,  mentioned  m  the  pre- 


tion.  ceding  section,  nor  for  any  such  patent  in  which  said  offi- 

June  6,  1872,  c.  .      *  ,       *7,  .         ,,  .     ,.         ,.      .     , 

316,  v.  IT,  p.  261.  cers  or  employes  may  be  directly  or  indirectly  interested. 
"  money  'to     908.  That  hereafter  no  money  shall  be  expended  at  said 


1  armories  in  the  perfection  of  patentable  inventions  in  the 
r.  3,  1875,  v.  manufacture  of  arms  by  officers  of  the  Army  otherwise 
is,  p.  455.          compensated  for  their  services  to  the  United  States.3    Act 

of  March  3,  1875  (18  Stat.  L.,  455). 

rmLa  Aboard  "of  ®^'  ^na^  no  Par^  °^  ^s  appropriation  shall  be  expended 
officers  to  test,  for  the  manufacture  of  magazine  rifles  of  foreign  invention 
v.  27,  p.  486.  '  until  such  magazine  rifles  of  American  invention  as  may  be 
presented  for  tests  to  the  War  Department  within  the  next 
thirty  days  shall  have  been  tested  by  a  board  of  officers  to 
be  selected  by  the  Secretary  of  War,  which  board  shall 
report  to  the  Board  of  Ordnance  and  Fortification,  on  or 
before  July  first,  eighteen  hundred  and  ninety-three.  If 
the  decision  of  said  board  of  officers  shall  be  in  favor  of 
any  American  invention  and  shall  also  receive  the  approval 
of  the  Board  of  Ordnance  and  Fortification  and  the  Sec- 
retary of  War,  then  this  appropriation,  or  such  part  thereof 
as  the  Secretary  may  direct,  shall  be  expended  in  the  man- 
ufacture of  such  American  arm:  Provided  further,  That  if 
no  such  American  invention  shall  be  recommended  by  said 
board  or  receive  the  approval  of  the  Secretary  of  War  this 

1  See  chapter  entitled  THE  MILITIA. 

2  Under  the  authority  conferred  by  several  acts  of  appropriation  (see  paragraphs  908- 
911  post),  the  Springfield  breech-loading  system  has  been  superseded  by  a  system  of 
breech-loading  magazine  small  arms. 

3  By  the  act  of  March  3,  1883  (22  Stat.  L.,  625;,  "the  Secretary  of  the  Interior  and  the 
Commissioner  of  Patents  are  authorized  to  grant  any  officer  of  the  Government, 
except  officers  and  employees  of  the  Patent  Office,  a  patent  for  any  invention  of  the 
classes  mentioned  in  section  forty-eight  hundred  and  eighty  six  of  the  Kevised 
Statutes,  when  such  invention  is  used  or  to  be  used  in  the  public  service,  without 
the  payment  of  any  fee:  Provided,  That  the  applicant  in  his  application  shall  state 
that  the  invention  described  therein,  if  patented,  may  be  used  by  the  Governmentor 
any  of  its  officers  or  employees  in  the  prosecution  of  work  for  the  Government, 
or  by  any  other  person  in  the  United  States,  without  the  payuient  to  him  of  any 
royalty  thereon,  which,  stipulation  shall  be  included  in  the  patent.'' 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  321 

appropriation  shall  be  applicable  to  the  manufacture  of  the 
magazine  arm  recommended  for  trial  by  the  board  recently 
in  session  and  approved  by  the  Secretary  of  War.  Act  of 
February  27,  1893  (27  Stat.  L.,  486). 

910.  For  manufacture  of  arms  at  the  national  armories,    Manufacture 
four  hundred  thousand  dollars:  Provided,  That  if  the  Sec-  arms!" agazine 
retary  of  War  shall,  upon  the  report  of  the  small-arms  27Jpyi1862.1892lV' 
board  now  in  session,  adopt  a  new  rifle  or  system  for  rifles 

for  the  military  service,  or  for  trial  with  a  view  to  such 
adoption,  then  this  appropriation  shall  be  available  for  the 
procurement  of  such' arms.  Act  of  July  16}  1892  (27  Stat. 
L.,  182). 

911.  Manufacture  of  arms  at  the  National  armories,  four  Manufacture  of 
hundred  thousand  dollars:  Provided,  That  this  appropria-  arAug6 MSM, v. 
tion  shall  be  applicable  to  the  manufacture  of  the  magazine  8>  p' 242' 
arm  recommended  for  trial  by  the  board,  recently  in  ses- 
sion, and  approved  by  the  Secretary  of  War.1    Act  of  Au- 
gust 6',  1894  (28  Stat.  L.,  242). 

912.  That  hereafter  the  cost  to  the  Ordnance  Department  ti^rms  for  mili- 
of  all  ordnance  and  ordnance  stores  issued  to  the  States,    Mar.  2,  issg,  v. 

OPJ     r\     QQQ 

Territories,  and  District  of  Columbia,  under  the  act  of 
February  twelfth,  eighteen  hundred  and  eighty-seven,  shall 
be  credited  to  the  appropriation  for  u  manufacture  of  arms 
at  national  armories,"  and  used  to  procure  like  ordnance 
stores,  and  that  said  appropriation  shall  be  available  until 
exhausted,  not  exceeding  two  years.2  Act  of  March  2, 1889 
(25  Stat.  L.j  833). 

ISSUES  OF  ARMS,  ETC.,  TO  EXECUTIVE  DEPARTMENTS. 

912a.  That  upon  the  request  of  the  head  of  any  Depart-  tol8thuee  8°efvtr^i 
ment,  the  Secretary  of  War  be,  and  he  hereby  is,  authorized  ^^nt™  De~ 
and  directed  to  issue  arms  and  ammunition  whenever  they  Mar- 3- 181<9.  v. 

20,  p.  410. 

may  be  required  for  the  protection  of  the  public  money  and 
property,  and  they  may  be  delivered  to  any  officer  of  the 
Department  designated  by  the  head  of  such  Department, 
to  be  accounted  for  to  the  Secretary  of  War,  and  to  be 
returned  when  the  necessity  for  their  use  has  expired. 
Arms  and  ammunition  heretofore  furnished  to  any  Depart- 
ment by  the  War  Department,  for  which  the  War  Depart- 
ment has  not  been  reimbursed,  may  be  receipted  for  under 
the  provisions  of  this  act.  Act  of  March  3,  1879  (20  Stat. 
L.j  410). 

'Tinder  the  authority  conferred  by  this  statute  a  system  of  magazine  small  arms 
was  adopted  by  the  Secretary  of  War  on  the  recommendation  of  the  Board  convened 
in  pursuance  of  the  act  of  February  27,  1893  (27  Stat.  L.,  480).  The  magazine  arm 
adopted  is  known  as  the  Krag- Jorgensen  magazine  rifle,  caliber  30.  This  provision 
was  repeated  in  the  acts  of  February  12,  1895  (28  Stat.  L.,  682),  and  March  16,  1896 
(29  Stat.  L.,  68). 

2  This  provision  was  repeated  in  the  act  of  June  13,  1890  (26  Stat.  L.,  158). 

1919 21 


CHAPTER  XXIII. 


THE  SIGNAL  DEPARTMENT. 


Par. 

913.  Chief  Signal  Officer;  duties. 

914.  The  Signal  Corps;   composi- 

tion. 

915.  Reorganization  of  officers. 

916.  Appointments,      promotions, 

etc. 

917.  Signal  Corps  to  remain  part 

of  Military  Establishment. 

918.  Weather  Bureau;  details  from 

Army. 

919.  Enlisted  men. 

920.  Signal  Corps  to  be  appropri- 

ated for  with  the  Army. 


Par. 

921.  Enlisted  men  to  make  returns 

of  property. 

922.  Regulations  to  be  prescribed 

by  Chief  Signal  Officer. 

923.  Military  telegraph-lines, 

Chief  Signal  Officer  to  con- 
trol; expenses,  etc.,  how 
defrayed. 

924.  Construction  of  new  lines. 

925.  Injury  to  telegraph-lines. 


Chief 


•f  dSutfesal  913<  Tnat  tne  ^Qief  Signal  Officer  shall  have  charge, 
16\  under  the  direction  of  the  Secretary  of  War,  of  all  military 
signal  duties,  and  of  books,  papers,  and  devices  connected 
therewith,  including  telegraph  and  telephone  apparatus 
and  the  neces.sary  meteorological  instruments  for  use  on 
target  ranges,  and  other  military  uses;  the  construction, 
repair,  and  operation  of  military  telegraph-lines,  and  the 
duty  of  collecting  and  transmitting  information  for  the 
Army  by  telegraph  or  otherwise,  and  all  other  duties  usually 
pertaining  to  military  signaling;  and  the  operations  of 
said  corps  shall  be  confined  to  strictly  military  matters.1 
Sec.  2,  act  of  October  1,  1890  (26  Stat.  L.,  653). 


act  of  June  16,  1880  (21  Stat.  L.,  267),  contained  a  provision  conferring  upon 
the  Chief  Signal  Officer  the  rank  and  pay  of  a  brigadier-general.  The  rank  attached 
to  the  office  under  section  1195,  Revised  Statutes,  was  that  of  a  colonel  of  cavalry. 

The  duties  performed  by  this  officer  in  connection  with  the  observation  and  report 
of  storms  were,  by  the  act  of  October  1,  1890  (26  Stat.  L.,  653),  transferred  to  the  Depart- 
ment of  Agriculture.  This  statute,  which  became  operative  on  July  1,  1891,  contained 
the  following  provisions: 

SEC.  3.  That  the  Chief  of  the  Weather  Bureau,  under  the  direction  of  the  Secre 
tary  of  Agriculture,  on  and  after  July  first,  eighteen  hundred  and  ninety  one,  shal) 
have  charge  of  the  forecasting  of  weather,  the  issue  of  storm  warnings,  the  display 
of  weather  and  flood  signals  for  the  benefit  of  agriculture,  commerce,  and  navigation. 
the  gauging  and  reporting  of  rivers,  the  maintenance  and  operation  of  seacoast  tele 
graph  lines  and  the  collection  and  transmission  of  marine  intelligence  for  the  benefit 
of  commerce  and  navigation,  the  reporting  of  temperature  and  rain-fall  conditions 
for  the  cotton  interests,  the  display  of  frost  and  cold-  wave  signals,  the  distribution 
of  meteorological  information  in  the  interests  of  agriculture  and  commerce,  and  the 
taking  of  such  meteorological  observations  as  may  be  necessary  to  establish  and 
record  the  climatic  Conditions  of  the  United  States,  or  as  are  essential  tor  the  proper 
execution  of  the  foregoing  duties. 

SEC.  5.  That  the  enlisted  force  of  the  Signal  Corps,  excepting  those  hereinafter 
322 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  323 


914.  That  in  addition  to  the  Chief  Signal  Officer  the    T"«  signal 

Corps;   composi- 

commissioned  force  of  the  Signal  Corps  shall  hereafter  tioi»-  .  . 
consist  of  one  major,  four  captains  (mounted),  and  four  first 
lieutenants  (mounted),  who  shall  receive  the  pay  and  allow- 
ances of  like  grades  in  the  Army.  The  officers  herein  pro- 
vided for  shall  be  appointed  from  the  Army,  including 
lieutenants  of  the  Signal  Corps,  preference  being  given  to 
officers  who  have  performed  long  and  efficient  service  in 
the  Signal  Service  :  Provided,  That  no  appointment  shall 
be  made  until  a  board,  to  be  appointed  by  the  Secretary  of 
War,  shall  have  submitted  a  report  recommending  officers 
for  appointment  in  the  Signal  Corps  in  the  order  of  merit, 
based  upon  the  importance  and  usefulness  of  work  per- 
formed in  the  Signal  Service,  as  said  board  may  determine 
from  the  official  records.  And  such  second  lieutenants  of 
the  Signal  Corps  as  may  not  be  promoted  under  the  pro- 
visions of  this  act  shall  be  appointed  second  lieutenants  in 
the  line  of  the  Army  with  present  date  of  commission,  and 
shall  be  assigned  to  the  first  vacancies  which  may  occur  in 
the  grade  of  second  lieutenant  after  the  appointments  herein 
provided  for  have  been  made.  Sec.  6,  ibid. 

915.  That  whenever  a  vacancy  in  the  grade  of  brigadier-  0/Jffficf??ization 
general  shall  occur  in  the  office  of  Chief  Signal  Officer,  28Apuf^'  1894-  v- 
said  vacancy  shall  not  be  filled,  but  said  grade  shall  cease 

and  determine,  and  thereafter  the  commissioned  force  of 
the  Signal  Corps  shall  consist  of  one  colonel,  who  shall  be 
the  Chief  Signal  Officer  of  the  Army,  and  selected  from  the 
Corps,  and  one  lieutenant-colonel,  one  major,  and  three 
captains  (mounted)  to  be  appointed  from  the  Corps  accord- 
ing to  seniority,  and  three  first  lieutenants  (mounted)  to  be 
appointed  as  now  provided  by  law,  who  shall  each  receive 
the  pay  and  allowances  of  like  grades  in  the  Army,  and 
the  officers  of  the  Signal  Corps  shall  retain  the  commis- 
sions held  by  them  at  the  date  of  the  next  vacancy  in  the 
office  of  Chief  Signal  Officer,  unless  promoted  in  compliance 
with  law.  Act  of  August  6,  1894  (28  Stat.  £.,  234). 

provided  for,  shall  be  honorably  discharged  from  the  Army  on  June  thirtieth- 
eighteen  hundred  and  ninety-one,  and  such  portion  of  this  entire  force,  including 
the  civilian  employees  of  the  Signal  Service,  as  may  be  necessary  for  the  proper 
performance  of  the  duties  of  the  Weather  Bureau  snail,  if  they  so  elect,  be  trans- 
ferred to  the  Department  of  Agriculture,  and  the  compensation  of  the  force  so 
transferred  shall  continue  as  it  shall  be  in  the  Signal  Service  on  June  thirtieth, 
eighteen  hundred  and  ninety  -one,  until  otherwise  provided  bylaw:  Provided,  That 
skilled  observers  serving  in  the  Signal  Service  at  said  date  shall  be  entitled  to  prefer- 
ence over  other  persons  not  in  the  Signal  Service  for  appointment  in  the  Weather 
Bureau  to  places  for  which  they  may  be  properly  qualified  until  the  expiration  of 
the  time  for  which  they  were  last  enlisted. 

For  statutory  provisions  respecting  sale  of  surplus  publications  see  paragraph  76, 
ante. 


324  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

Appointments,     916.  That  all  appointments  and  promotions  in  the  Signal 

promotions,  etc. 

sec.  7,  Oct.  i,  Corps  after  this  reorganization  shall  be  made  after  exam- 
is.  s.,v'sec8?i206J  ination  and  approval  under  sections  twelve  hundred  and 
amended^        '  six  and  twelve  hundred  and  seven  of  the  Eevised  Statutes, 
which  are  hereby  amended  so  as  to  be  applicable  to  and  to 
provide  for  the  promotion  of  the  lieutenants  of  the  Signal 
Corps  in  the  same  manner  as  they  now  apply  to  the  Corps 
of  Engineers  and  the  Ordnance  Corps ;  and  all  vacancies 
which  may  hereafter  exist  in  the  grade  of  first  lieutenant 
in  the  Signal  Corps  shall  be  filled  by  transfer  from  the  line 
of  the  Army,  after  competitive  examination  and  recom- 
mendation by  a  board  of  officers  of  the  Signal  Corps  to  be 
appointed  by  the  Secretary  of  War.     Sec.  7,  act  of  October  1, 
1890  (26  Stat.  L.,  653). 
signal  corps  to     917.  That  the  civilian  duties  now  performed  by  the  Signal 

remain    part    of 

Military  Estab-  Corps  of  the  Army  shall  hereafter  devolve  upon  a  bureau 
sec.  i,'oct.  i,  to  be  known  as  the  Weather  Bureau,  which,  on  and  after 
July  first,  eighteen  hundred  and  ninety-one,  shall  be  estab- 
lished in  and  attached  to  the  Department  of  Agriculture, 
and  the  Signal  Corps  of  the  Army  shall  remain  a  part  of 
the  Military  Establishment  under  the  direction  of  the  Sec- 
retary of  War,  and  all  estimates  for  its  support  shall  be 
included  with  other  estimates  for  the  support  of  the  Military 
Establishment.  Sec.  1,  ibid. 

weatherBureaV  918<  That  tbe  Weather  Bureau  shall  hereafter  consist  of 
sec.  4,  ibid.  one  Chief  of  Weather  Bureau  and  such  civilian  employees 
as  Congress  may  annually  provide  for  and  as  may  be  neces- 
sary to  properly  perform  the  duties  devolving  on  said 
bureau  by  law,  and  the  chief  of  said  bureau  shall  receive 
an  annual  compensation  of  four  thousand  five  hundred 
dollars,  and  be  appointed  by  the  President,  by  and  with 
the  advice  and  consent  of  the  Senate:  Provided,  That  the 
Chief  Signal  Officer  of  the  Army  may,  in  the  discretion  of 

AJnf  ails  f  rom  the  President,  be  detailed  to  take  charge  of  said  bureau, 
and  in  like  manner  other  officers  of  the  Army,  not  exceed- 
ing four,  expert  in  the  duties  of  the  weather  service  may 
be  assigned  to  duty  with  the  Weather  Bureau,  and  while 
so  serving  shall  receive  the  pay  and  allowances  to  which 
they  are  entitled  by  law.  Sec.  4,  ibid. 

Enlisted  men.      919.  That  the  enlisted  force  of  the  Signal  Corps  of  the 

Army  shall  hereafter  consist  of  fifty  sergeants,  of  which  ten 

shall  be  of  the  first  class,  with  pay  of  hospital  stewards. 

Sec.  8,  ibid. 

signal  Corpsto     920.  That  on   and  after  July  first,  eighteen   hundred 

be   appropriated  .       .  „          .  ,. 

for    with  tbe  and  ninety-one,  the  appropriations  for  the  support  of  the 
Asec!'fl,  Oct.  i,  Signal  Corps  of  the  Army  shall  be  made  with  those  of  other 

1890,  v.  26,  p.  654. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  325 

921.  That,  from  and  after  the  passage  of  this  act,  every    Enlisted  men, 
officer  of  the  Signal  Corps,  every  non-commissioned  officer  turns °Saprop- 
or  private  of  the  Signal  Corps,  and  all  other  officers,  agents,  er§ct  12,1888,  v. 
or  persons  who  now  have  in  possession,  or  may  hereafter 25' p' 552< 
receive  or  may  be  intrusted  with  any  stores  or  supplies, 

shall,  quarterly  or  more  often,  if  so  directed,  and  in  such 
manner  and  on  such  forms  as  may  be  prescribed  by  the 
Chief  Signal  Officer,  make  true  and  correct  returns  to 
the  Chief  Signal  Officer  of  all  Signal  Service  property  and 
all  other  supplies  and  stores  of  every  kind  received  by  or 
intrusted  to  them  and  each  of  them,  or  which  may,  in  any 
manner,  come  into  their  and  each  of  their  possession  or 
charge.1  Act  of  October  12,  1888  (25  Stat.  £.,  552). 

922.  The  Chief  Signal  Officer,  subject  to  the  approval  °^beEe^^§5^^° 
the  Secretary  of  War,  is  hereby  authorized  and  directed  to  chief  signal  om- 
draw  up  and  enforce  in  his  Bureau  a  system  of  rules  and    ibid. 
regulations  for  the  government  of  the  Signal  Bureau,  and  of 

all  persons  in  said  Bureau,  and  for  the  safe-keeping  and 
preservation  of  all  Signal  Service  property  of  every  kind, 
and  to  direct  and  prescribe  the  kind,  number,  and  form,  of 
all  returns  and  reports,  and  to  enforce  compliance  therewith. 
Ibid. 

MILITARY  TELEGRAPH-LINES. 

923.  For  completing  the  construction,  and  for  mainte-    chief  signal 
nance  and  use  of  military  telegraph-lines  on  the  Indian  and  expenses* how 
Mexican  frontiers,  and  for  the  connection  of  military  posts  ^Mar.^/m^v". 
and  stations,  for  the  better  protection  of  immigration  and18'p<388< 

the  frontier  settlements  from  depredations,  especially  in  the 
State  of  Texas,  the  Territories  of  New  Mexico  and  Arizona, 
and  the  Indian  Territory,  eighty-eight  thousand  dollars:3 
Act  of  March  5,  1875  (18  Stat.  L..  388).  Provided.  That  on  Receipts  to  be 

paid  into  Treas- 

and  after  the  first  day  of  July,  eighteen  hundred  andury. 
eighty-three,  all  moneys  received  for  the  transmission  of  22,p.6i6.' 

1  Section  10  of  the  act  of  October  1, 1890  (26  Stat.  L.,  655),  contains  the  provision  that 
the  President  is  authorized  to  appoint  on  or  before  March,  first,  eighteen  hundred 
and  ninety-one,  a  board  of  three  officials,  which  board  shall  be  charged  with  the 
duty  of  examining  the  classes  and  kinds  of  property  and  the  amount  of  moneys  per- 
taining to  and  in  the  possession  of  the  Signal  Corps,  and  said  board  shall  as  soon  as 
practicable  make  the  Secretary  of  War  a  report  setting  forth  the  amount  of  moneys 
and  the  quantities  and  kinds  of  property  more  suitable  for  the  work  of  the  Weather 
Bureau  and  not  necessary  for  the  use  of  the  Signal  Corps,  and  what  part  of  said 
property  will  be  suitable  and  necessary  for  the  Signal  Corps,  and  upon  the  approval 
of  said  report  by  the  Secretary  of  War  the  property  and  moneys  which  shall  be 
decided  to  properly  pertain  to  the  Weather  Bureau  work  shall  be  transferred  to  such 
bureau,  and  to  the  custody  of  the  Secretary  of  Agriculture,  while  the  remaining  prop- 
erty and  funds  shall  continue  in  the  possession  of  the  Signal  Corps. 

1  The  act  of  March  3, 1875,  contained  a  provision  authorizing  the  Secretary  of  War 
"to  pay  the  expenses  of  operating  and  keeping  in  repair  the  said  telegraph-lines  out 
of  any  money  received  for  dispatches  sent  over  said  lines ;  any  balance  remaining 
after  the  payment  of  such  expenses  to  be  covered  into  the  Treasury  as  a  miscellane- 
ous receipt;  the  money  received  in  anyone  fiscal  year  to  be  used  only  in  payment  for 
the  expenses  of  that  year.  And  a  full  report  of  the  receipts  and  expenditures  in 
connection  with  the  said  telegraph-lines  shall  be  made  quarterly  to  the  Secretary  of 
War,  through  the  Chief  Signal  Officer.  And  the  Chief  Signal  Officer  shall  have  the 
charge  and  control  of  said  lines  of  telegraph  in  the  construction,  repair,  and  operation 
of  the  same." 


326  THE   MILITARY   LAWS    OF   THE   UNITED    STATES. 

private  dispatches  over  any  and  all  telegraph-lines  owned 
or  operated  by  the  United  States,  shall  be  paid  into  the 
Treasury  of  the  United  States,  as  required  by  section  thirty- 
six  hundred  and  seventeen  of  the  Revised  Statutes;  and 
all  acts  or  parts  of  acts  inconsistent  herewith  are  hereby 
repealed.    Act  of  March  3, 1883  (22  Stat.  L.,  616). 
construction  of     934.  That  the  construction  of  new  lines  of  telegraph  shall 
Aug.  7, 1882,  v.  be  under  the  supervision  and  direction  of  the  several  mili- 
tary commanders,  subject  to  the  approval  of  the  Secretary 
of  War.    Act  of  August  7, 1882  (22  Stat.  L.,  319). 
^•£17  to  teie-     925.  That  any  person  or  persons  who  shall  willfully  or 
ot  united  states]  maliciously  injure  or  destroy  any  of  the  works  or  property 

interference  with 

working, obstruc-  or  material  of  any  telegraphic  line  constructed  and  owned, 

tion,&c., penalty.  .          .  TT.    .       ,   ~,  ., 

June  23, 1874,  v.  or  in  process  of  construction,  by  the  United  States,  or  that 
may  be  hereafter  constructed  and  owned  or  occupied  and 
controlled  by  the  United  States,  or  who  shall  willfully  or 
maliciously  interfere  in  any  way  with  the  working  or  use  of 
any  such  telegraphic  line,  or  who  shall  willfully  or  mali- 
ciously obstruct,  hinder,  or  delay  the  transmission  of  any 
communication  over  any  such  telegraphic  line,  shall  be 
deemed  guilty  of  a  misdemeanor,  and,  on  conviction  thereof 
in  any  district  court  of  the  United  States  having  jurisdic- 
tion of  the  same,  shall  be  punished  by  a  fine  of  not  less  than 
one  hundred  nor  more  than  one  thousand  dollars,  or  with 
imprisonment  for  a  term  not  exceeding  three  years,  or  with 
both,  in  the  discretion  of  the  court.  Act  of  June  23, 1874 
(18  Stat.  L.,  250). 


CHAPTER   XXIV. 


THE  BECORD  AND  PENSION  OFFICE. 


Par. 

929.  Military  histories  of  regi- 
ments may  be  furnished 
States. 


Par. 

926.  Record  and  Pension  Office; 

duties. 

927.  Revolutionary,  military  rec- 

ords, etc. 

928.  All  revolutionary,  army  rec- 

ords, etc.,  to  be  transferred 
to  the  Secretary  of  War. 

926.  That  the  division  organized  by  the  Secretary  of 

War  in  his  office  for  the  preservation  and  custody  of  theWar,  Depart 

"  ment,   estab- 

records  of  the  volunteer  armies  under  the  name  of  the  rec- .uahed. 

May  9,  1892,  v. 

ord  and  pension  division  is  hereby  established  as  now  27,  p.  27. 
organized,  and  shall  hereafter  be  known  as  the  Eecord 
and  Pension  Office  of  the  War  Department;  and  the  Pres- 
ident is  hereby  authorized  to  select  an  officer  of  the  Army 
whom  he  may  consider  to  be  especially  well  qualified  for 
the  performance  of  the  duties  hereinafter  specified  and,  by 
and  with  the  advice  and  consent  of  the  Senate,  to  appoint 
him  in  the  Army  to  be  chief  of  said  office,  who  shall  have 
the  rank,  pay,  and  allowances  of  a  colonel  and  shall,  under 
the  Secretary  of  War,  have  charge  of  the  military  and  Duties, 
hospital  records  of  the  volunteer  armies  and  the  pension 
and  other  business  of  the  War  Department  connected 
therewith;  and  all  laws  or  parts  of  laws  inconsistent  with 
the  terms  of  this  act  are  hereby  repealed.  Act  of  May  9, 
1892  (27  Stat.  L.,  27). 

927.  Whereas  the  military  records  of  the  American  Eev- 
olution  and  of  the  war  of  eighteen  hundred  and  twelve  are 
now  preserved  in  different  Executive  Departments  of  the 
Government  and  are  not  easily  accessible ;  and 

Whereas  it  is  important  that  they  should  be  collected 
in  one  Department,  where  they  could  be  easily  consulted 
and  properly  arranged  for  use:  Therefore, 

Be  it  enacted  ly  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
the  military  records  of  the  American  Revolution  and  of  the 

327 


Revolutionary 
military  records. 


328  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

war  of  eighteen  hundred  and  twelve,  now  preserved  in  the 


D  e  art0  Treasurv  an(l  Interior  Departments,  be  transferred  to  the 
merit.  War  Department,  to  be  preserved  in  the  Record  and  Pen- 

27,  p.  275.'  'sion  Division  of  that  Department,  and  that  they  shall  be 
properly  indexed  and  arranged  for  use.  Act  of  July  27, 
1892  (27  Mat.  L.,  275}. 

928<  Tnat  a11  military  records,  such  as  muster  and  pay 
to"  Sec?e-  rolls>  orders?  and  reports  relating  to  the  personnel  or  the 
teAugf  W8ari894  °Perati°ns  °f  tne  armies  of  the  Revolutionary  war  and  of 
v.28,p'.403(.       '  the  war  of  eighteen  hundred  and  twelve,  now  in  any  of  the 
Executive  Departments,  shall  be  transferred  to  the  Secre- 
tary of  War  to  be  preserved,  indexed  and  prepared  for  pub- 
lication.    Act  of  August  18,  1894  (28  Stat.  L.,  403}. 
Military  histo-     929.  And  the  Secretary  of  War  shall,  upon  the  applica- 

ries  ot  regiments    . 

may  be  furnished  tion  of  the  Governor  of  any  State,  furnish  to  such  Gov- 
1895,  v.  eruor  a  transcript  of  the  military  history  of  any  regiment 
or  company  of  his  State,  under  such  regulations  as  the 
Secretary  of  War  may  prescribe,  at  the  expense  of  such 
State.1    Act  of  March  2,  1895  (28  Stat.  L.,  788). 

1  This  provision  was  repeated  in  the  act  of  May  28,  1896  (29  Stat.  L.,  161). 


CHAPTER 


POST  AND  EEGIMENTAL  CHAPLAINS. 


Par. 

934.  Duties  as  school-teachers. 

935.  Monthly  reports. 

936.  Facilities  in  performance  of 

duties. 


Par. 

930.  Chaplains;  number. 

931.  Rank. 

932.  Qualifications. 

933.  Duties  as  clergymen. 

930.  The  President  may,  by  and  with  the  advice  and  con- 
sent of  the  Senate,  appoint  a  chaplain  for  each  regiment  of  igj^  J,  1838'0J: 
colored  troops,  and  thirty  post-chaplains.  Provided,  That^ar.^2,  J8^^ 
no  appointment  of  regimental  or  post-chaplains  shall  be  Apr.  9, 1884,0.53,' 

8.  1,  V.    13,   p.   46; 

made  until  those  on  waiting  orders  are  assigned.  July  28,  isee,  c. 

299,  ss.  7,  30,  v.  14, 

pp.  333,  337 ;  Mar.  2, 1867,  c.  145,  s.  7,  v.  14,  p.  423 ;  July 
15,  1870,  c.  294,  s,  12,  v.  16,  p.  318.      Sec.  1121,  R.  S. 

931.  Chaplains  shall  have  the  rank  of  captain  of  infantry,    Ranlf,  etc.,  of 


without  command,  and  shall  be  on  the  same  footing  with    Apr.  9,  1864,  c. 
other  officers  of  the  Army,  as  to  tenure  of  office,  retire-  jniy  28,'  is'ee,  c! 

299,  ss.  7,  30,  v.  14, 

inent,  and  pensions.  PP.  333,  337  ;  Mar. 

2,  1867,  c.  145,  s.  7,  v.  14,  p.  423  ;  July  15,  1870, 
c.  294,  s.  12,  v.  16,  p.  318.    Sec.  1122,  B.  S. 

932.  No  person  shall  be  appointed  as  regimental  or  postofQualiflcation8 


chaplain  until  he  shall  furnish  proof  that  he  is  a  regularly-  2f^a}/^\1  s^'  c' 
ordained  minister  of  some  religious  denomination,  in  good  595' 

SIM*.  1  1  .*>«  K.  S, 

standing  at  the  time  of  his  appointment,  together  with  a 
recommendation  for  such  appointment  from  some  author- 
ized ecclesiastical  body,  or  from  not  less  than  five  accredited 
ministers  of  said  denomination. 

933.  All  regimental  chaplains  and  post-chaplains  shall,    Duties  as  cier- 
when  it  may  be  practicable,  hold  appropriate  religious  serv-  53^pJv9i386446' 
ices,  for  the  benefit  of  the  commands  to  which  they  may   sec.ii25,R.s. 
be  assigned  to  duty,  at  least  once  on  each  Sunday,  and  shall 

perform  appropriate  religious  burial  services  at  the  burial 
of  officers  and  soldiers  who  may  die  in  such  commands. 

934.  The  duty  of  chaplains  of  regiments  of  colored  troops  ^£,^^.£^5  8 
and  of  post-chaplains  shall  include  the  instruction  of  the  ^^1  ^83|'  c* 
enlisted  men  in  the  common  English  branches  of  education.  l 


p.  337. 


i  For  statutory  provisions  respecting:  post  schools,  see  the  chapter  entitled  ENLISTED  Sec.  1124,  R.  S. 
MEN.  These  schools  are  administered  in  accordance  with  paragraphs  290,  310,  312, 
313,  317-324,  1006,  1014-1019,  1021,  1022,  and  1024  of  the  Army  Regulations  of  1895.  For 
the  duties  and  assignments  of  chaplains,  see  paragraphs  38-41,  Army  Regulations  of 
1895. 

329 


330  THE  MILITARY   LAWS   OF   THE   UNITED   STATES. 

-     935,  Post[,]  hospital  and  regimental  chaplains  shall  make 


^^,  1864,^0.  monthly  reports  to  the  Adjutant-  General  of  the  Army, 
Feb.'  27,'  1877,  c,'  through  the  usual  military  channels,  of  the  moral  condition 

sec.  lile,  R.S.  and  general  history  of  the  regiments  or  posts  to  which  they 
may  be  attached. 

Facilities  in     936.  It  shall  be  the  duty  of  commanders  of  regiments, 

performance    o  f 

duties.  hospitals,  and  posts  to  afford  to  chaplains,  assigned  to  the 

§3,sp3,V.'i3,p.46.'same  for  duty,  such  facilities  as  may  aid  them  in  the  per- 

Sec.ll27,TR.S.  . 

forrnance  of  their  duties. 


CHAPTER 


COMMISSIONED  OFFICERS. 


Par. 

937.  Appointments  to  be  to  arm  of 

service. 
338.  Promotion  by  seniority. 

939.  Assignment  and  transfer  of 

officers. 

940.  Commissions. 

941.  Examination  for   promotion 

of  all  officers  below  major. 

942.  Examination  of  officers  ap- 

pointed from  civil  life; 
composition  of  boards ; 
failure. 

943.  Officers  from  civil  life  may 

waive  board  of  similar 
character. 

944.  Cadets  to  be  commissioned 

second  lieutenants  in  any 
arm  or  corps  in  which  a 
vacancy  exists;  additional 
second  lieutenants. 

945.  Graduates  to  receive  pay  as 

second  lieutenants  from 
graduation. 


Par. 

946.  Promotion  of  enlisted  men; 

qualifications. 

947.  Examination  board. 

948.  Examinations ;  certificates  of 

eligibility, 

949.  Effect  of  a  court-martial. 

950.  Pay  during  absence. 

951.  Leave  on  full  pay. 

952.  Transfers  to  the  staff. 

953.  Leaving  port  on  tender   of 

resignation. 

954.  Accepting  diplomatic  or  con- 

sular office. 

955.  Restoration  of  dismissed  offi- 

cers. 

956.  Officers   dropped    for    deser- 

tion. 

957.  Officers  dismissed  by  Presi- 

dent may  demand  trial. 


APPOINTMENTS. 


937.  Hereafter  all  appointments  in  the  line  of  the  Army    Appointments 

,     ,,  ,       ,  ...  „  , ,  .  ,         ,  ,      to  be  to  arm  of 

shall  be  by  commission  in  an  arm  of  the  service  and  not  by  service. 
commission  in  any  particular  regiment.1     Sec.  2,  act  of  Oc- 
tober 1,  1890  (26  Stat.  L.,  562). 


1  An  appointment,  or  commission,  in  order  to  take  effect  at  all  must  be  accepted ; 
but,  when  accepted,  it  takes  effect  as  of  and  from  its  date,  i.  e.,  the  date  on  which  it  is 
completed  by  the  signature  of  the  appointing  power,  or  that  as  and  from  which  it  pur- 
ports in  terms  to  be  operative.  Dig.  J.  A.  Gen.,  149.  See  also  Marbury  v.  Madison, 
1  Cranch,  137;  U.  S.  v.  Bradley,  10  Pet.,  304;  U.  S.  v.  Le  Baron,  19  How..  78;  Mont- 
gomery v.  TJ.  S.,  5  C.  Cls.  R.,  97.  See,  also,  chapter  entitled  THE  EXECUTIVE. 

The  power  of  the  President  to  fill  a  vacancy  in  the  Army,  during  a  recess  of  the 
Senate,  may  be  exercised  by  a  letter  from  the  Secretary  ot  War,  and  such  a  letter 
may  constitute  his  commission,  there  being  no  law  which  prescribes  the  form  of  a 
military  commission.  O'Shea  v.  U.  S.,  28  C.  Cls.  R.,  392.  Where  the  President  is 
authorized  by  law  to  reinstate  a  discharged  Army  officer,  he  may  do  so  without  the 
advice  and  consent  of  the  Senate.  Collins  v.  U.  S.,  14  C.  Cls.  R.,  22;  Dig.  J.  A.  Gen., 
150.  An  officer  of  the  Army  or  Navy  of  the  United  States  does  not  hold  his  office 
by  contract,  but  at  the  will  of  the  sovereign  power.  Crenshaw  v.  U.  S.,  134  U.  S.,  98. 
For  statutory  provisions  respecting  appointments  to  the  lowest  grades  in  the  several 
staff  corpa  see  the  chapters  ao  entitled. 

331 


332  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 


PROMOTIONS. 

sen7orft°tion  by  ®^'  ^uat  hereafter  promotion  to  e very  grade  in  the  Army 
Oct.  i,'i89o,  v.  below  the  rank  of  brigadier- general,  throughout  each  arm, 
corps,  or  department  of  the  service,  shall,  subject  to  the 
examination  hereinafter  provided  for,  be  made  according 
to  seniority  in  the  next  lower  grade  of  that  arm,  corps,  or 
department:  Provided,  That  in  the  line  of  the  Army  all 
officers  now  above  the  grade  of  second  lieutenant  shall, 
subject  to  such  examination,  be  entitled  to  promotion  in 
accordance  with  existing  laws  and  regulations.  Act  of 
October  1,  1890  (26  Stat.  L.,  562). 
Assignment  939.  That  officers  of  [all]  grades  in  each  arm  of  the  serv- 

officers.  ice  shall  be  assigned  to  regiments,  and  transferred  from 

one  regiment  to  another,  as  the  interests  of  the  service  may 
require,  by  orders  from  the  War  Department,  and  hereafter 
all  appointments  in  the  line  of  the  Army  shall  be  by  com- 
mission in  an  arm  of  the  service,  and  not  by  commission 
in  any  particular  regiment.1  Sec.  2,  ibid. 

1  APPOINTMENT  AND  PROMOTION  OF  COMMISSIONED  OFFICERS. 

Notices  of  appointments  and  promotions  are  issued  by  the  War  Department, 
through  the  Adjutant- General  of  the  Army.  (Par.  20,  A.  R.,  1895.) 

Appointment  to  the  grade  of  general  officer  is  made  by  selection  from  the  Army. 
(Par.  21,  ibid.) 

Promotions  in  established  staff  corps  and  departments  to  include  the  grade  of 
colonel  will  be  made  by  seniority,  subject  to  the  examinations  required  by  law. 
(Par.  22,  ibid.) 

Promotions  in  the  line  of  the  Army  to  include  the  grade  of  colonel,  in  each  arm 
of  the  service,  will  be  made  by  seniority,  subject  to  the  examinations  required  by 
law,  except  that  all  officers  of  the  line  of  the  Army  in  service  October  1,  1890,  above 
the  grade  of  second  lieutenant,  will,  subject  to  the  prescribed  exam  inatkms,  be  pro- 
moted in  accordance  with  the  regulations  existing  on  that  date.  (Par.  23,  ibid.) 

A  civilian  to  be  eligible  for  appointment  must  be  a  citizen  of  the  United  States, 
unmarried,  between  21  and  27  years  of  age,  must  be  examined  and  approved  as  to 
habits,  moral  character,  mental  and  physical  ability,  education  and  general  fitness 
for  the  service,  by  a  board  convened  and  constituted  as  provided  in  paragraph  25  for 
the  final  competitive  examination  of  soldiers.  (Par.  31,  ibid.) 

Section  3  of  the  act  of  June  18,  1878  (20  Stat.  L.,  145),  which  contained  the  require- 
ment that  all  vacancies  occurring  in  the  grade  of  second  lieutenant  should  be  filled 
from  the  graduates  of  the  Military  Academy,  so  long  as  any  such  remained  in  the  serv- 
ice unassigned,  and  that  vacancies  then  remaining  should  be  filled  by  the  promotion 
of  meritorious  non-commissioned  officers,  and  that  any  vacancies  remaining  after  the 
exhaustion  of  the  two  classes  above  named  might  be  filled  by  the  appointment  of 
persons  from  civil  life,  was  expressly  repealed  by  section  5  of  the  act  of  July  30, 
1892.  (27  Stat.  L.,  336.)  The  Executive  policy  in  respect  to  appointments  to  the  grade 
of  second  lieutenant  in  the  line  of  the  Army  is  now  embodied  in  paragraph  24,  Army 
Regulations  of  1895,  which  provides  that  "Vacancies  in  the  grade  of  second  lieuten- 
ant existing  on  the  1st  day  of  July  each  year  are  filled  by  appointment,  in  order,  as 
follows:  (1)  From  graduates  of  the  United  States  Military  Academy ;  (2)  from  en- 
listed men  of  the  Army  found  duly  qualified;  (3)  from  civil  life.  (Par.  24,  A.  R. 
1895.) 

So  much  of  section  1218,  Revised  Statutes,  as  amended  by  the  act  of  May  13, 1884 
(23  Stat.  L.,  21),  as  requires  that  "No  person  who  held  a  commission  in  the  Army  or 
Navy  of  the  United  States  at  the  beginning  of  the  late  rebellion,  and  afterwards 
served  in  any  capacity  in  the  military,  naval,  or  civil  service  of  the  so-called  Confed- 
erate States,  or  of  either  of  the  States  in  insurrection  during  the  late  rebellion,  shall 
be  appointed  to  any  position  in  the  Army  or  Navy  of  the  United  States,"  was 
repealed  by  the  act  of  March  31, 1896  (29  Stat.  L.,  235). 

The  requirement  of  section  1218,  Revised  Statutes,  as  amended  by  the  act  of  May 
13,  1884  (23  Stat.  L.,  21),  that  no  person  who  held  a  commission  in  the  Army  or  Navy 
at  the  beginning  of  the  late  rebellion,  and  afterward  served  in  any  capacity  in  the 
military,  naval  or  civil  service  of  the  so-called  Confederate  States,  shall  be  appointed 
to  any  position  in  the  Army  or  Navy  of  the  United  States  was  repealed  by  the  act  of 

HISTORICAL  NOTE. 

•  The  rule  of  promotion  in  the  line  of  the  Army,  as  stated  in  paragraph  22  of  the 
Regulations  of  1889,  required  that  "promotions  to  the  rank  of  captain  will  be  made 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  333 

COMMISSIONS. 

940.  That  hereafter  the  commissions  of  all  officers  under    M°ami5J8< 
the  direction  and  control  of  the  Secretary  of  the  Treasury  ?  29> P- 75.  ' 
the  Secretary  of  War,  the  Secretary  of  the  Navy,  and  the 
Secretary  of  Agriculture  shall  be  made  out  and  recorded 

in  the  respective  Departments  under  which  they  are  to 
serve,  and  the  Department  seal  affixed  thereto,  any  laws 
to  the  contrary  notwithstanding :  Provided",  That  the  said 
seal  shall  not  be  affixed  to  any  such  commission  before  the 
same  shall  have  been  signed  by  the  President  of  the  United 
States.  Act  of  March  28,  1896  (29  Stat.  L.,  75). 

EXAMINATIONS   FOR  PROMOTION. 

941.  That  the  President  be,  and  he  is  hereby,  authorized 

to  prescribe  a  system  of  examination  of  all  officers  of  the  nja()01jcers 
Army  below  the  rank  of  major  to  determine  their  fitness  18|e<^ 
for  promotion,  such  an  examination  to  be  conducted  at 
such  times  anterior  to  the  accruing  of  the  right  to  promo- 
tion as  may  be  best  for  the  interests  of  the  service :  Pro-    where  officer 
videdj  That  the  President  may  waive  the  examination 
promotion  to  any  grade  in  the  case  of  any  officer  who  in    ' 
pursuance  of  existing  law  has  passed  a  satisfactory  exami- 
nation for  such  grade  prior  to  the  passage  of  this  act :  And 
provided,  That  if  any  officer  fails  to  pass  a  satisfactory 

regimentally,  to  major,  lieutenant-colonel,  and  colonel,  according  to  arm  of  service." 
This  rule,  which  was  replaced  by  the  act  of  October  1, 1890  (paragraph  938,  supra),  had 
its  origin  in  an  order  of  the  Secretary  of  War,  dated  May  26, 1 801 ,  which  declared  that 
"promotions  to  the  rank  of  captain  shall  be  made  regimentally,  and  to  the  rank  of 
major  and  lieutenant-colonel  in  the  lines  of  the  artillery  and  infantry,  respectively." 
This  order  was  supplemented  by  another,  issued  on  May  7,  1808,  making  the  above 
rule  for  promotion  in  the  infantry  and  artillery  applicable  to  the  cavalry  and  rifle- 
men. 

The  earliest  Congressional  action  on  the  subject  of  promotion  in  the  Army  is  con- 
tained in  the  fifth  section  of  the  act  of  June  26, 1812  (2  Stat.  L.,  764),  which  provided 
that  thereafter  "the  promotion  shall  be  made  through  the  lines  of  artillerists,  light 
artillery,  dragoons,  riflemen,  and  infantry,  respectively,  according  to  established  rule." 
The  rule  therein  referred  to  is  that  which  was  established  by  the  executive  order  as 
above  stated,  and  the  effect  of  the  statute  was  to  give  the  order  a  legislative  sanction. 
Subsequently,  by  section  12  of  the  act  of  March  30, 1814  (3  Stat.  L.,  113),  It  was  provided 
"that  from  and  after  the  passage  of  this  act,  promotions  may  be  made  through  the 
whole  Army  in  its  several  lines  of  light  artillery,  light  dragoons,  artillery,  infantry 
and  riflemen,  respectively."  Since  the  enactment  of  this  last  provision,  which  con- 
tinued in  force  down  to  the  revision  of  the  statutes,  promotion  to  the  rank  of  captain 
have  uniformly  been  made  regimentally;  so  that  the  construction  given  thereto,  in 
practice,  has  been  that  it  made  no  change  or  modification  of  the  previously  existing 
According  to  this  construction  (which  was  acted  upon  for  about  sixty  years) 
of  1814,  while  it  contemplated  that  promotions  should  be  made  in  the  several 


etc. 


rules. 

the  act  of  1814 

lines  or  arms  through  the  whole  Army,  and  that  officers  should  be  promoted  only  in 

their  respective  lines  or  arms,  did  not  prescribe  how  promotions  within  the  lines  or 

arms  should  be  made,  whether  regimentally  or  lineally.    As  thus  understood — and 

the  language  of  the  act  is  susceptible  of  that  interpretation — there  was  no  conflict 

between  it  and  the  rule  adverted  to. 

Section  1204,  Revised  Statutes,  contains  substantially  a  re-enactment  of  the  provi- 
sion above  quoted  from  the  act  of  1814.  When  embodying  that  provision  in  the  Re- 
vised Statutes,  it  is  reasonable  to  presume  that  Congress  was  familiar  with  the  con- 
struction which  had  been  placed  thereon,  and  so  long  acted  upon  by  the  Executive 
Department,  and  that  if  it  had  been  the  intention  of  that  body  to  introduce  a  differ- 
ent rule  on  the  subject  of  promotion,  different  phraseolgy  would  have  been  chosen  to 
signify  such  design.  By  adopting  the  language  of  the  previous  statute  the  fair 
inference  is  that  its  construction  was  acquiesced  in,  and  that  no  change  in  the  law 
of  promotion  was  intended.  (17  Opin.  Att.  Gen.,  65.)  See,  also,  paragraph  980, post. 


334  THE   MILITARY    LAWS   OF   THE    UNITED    STATES. 

examination  and  is  reported  unfit  for  promotion,  the  officer 

next  below  him  in  rank,  having  passed  said  examination, 

Retirement  on  shall  receive  the  promotion  :  And  provided.  That  should 

physical  diaabil-  »•«•'«•          i         •       i  •          •  TI_J?          j 

fty  contracted  in  the  officer  fail  in  his  physical  examination,  and  be  round 
luty'      incapacitated  for  service  by  reason  of  physical  disability 
contracted  in  line  of  duty  he  shall  be  retired  with  the  rank 
f°r^°  wn*cn  nis  seniority  entitled  him  to  be  promoted;  but  if 


her  easn 

Failure  on  re  ne  should  fail  for  any  other  reason  he  shall  be  suspended 

examination.  '     . 

from  promotion  for  one  year,  when  he  shall  be  reexammed, 

and  in  case  of  failure  on  such  reexamination  he  shall  be 

honorably  discharged  with  one  year's  pay  from  the  Army.1 

Examination     942.  That  the  examination  of  officers  appointed  in  the 

pointed     from  Army  from  civil  life,  or  of  officers  who  were  officers  of  vol- 

civil  life,  etc. 

unteers  only,  or  were  officers  of  the  militia  of  the  several 
States  called  into  tne  service  of  the  United  States,  or  were 
enlisted  men  in  the  regular  or  volunteer  service,  either  in 
the  Army,  Navy,  or  Marine  Corps,  during  the  war  of  the 
rebellion,  shall  be  conducted  by  boards  composed  entirely 

composition  of  of  officers  who  were  appointed  from  civil  life  or  of  officers 
who  were  officers  of  volunteers  only  during  said  war,  and 
such  examination  shall  relate  to  fitness  for  practical  service 

Practical  fit-  and  not  to  technical  and  scientific  knowledge;  and  in  case 

Failure.  of  failure  of  any  such  officer  in  the  re-examination  herein- 
before provided  for,  he  shall  be  placed  upon  the  retired 

NO  existing  list  of  the  Army;  and  no  act  now  in  force  shall  be  so  con- 

law  to  limit  re- 

tirement. strued  as  to  limit  or  restrict  the  retirement  of  officers  as 

herein  provided  for.     Sec.  3,  act  of  October  1,  1890  (26  Stat. 
L.,  562-). 
officers  from     943.  That  officers  entitled  by  this  section  to  examination 

civil     life     may 

waive  board  of  by  a  board  composed  entirely  of  officers  who  were  appointed 

similar     charac-     *  _       _  -.    '   - 

ter.  from  civil  life,  or  who  were  otncers  01  volunteers  only  during 

27,  p.  Ire.1  v'  the  war,  may,  by  written  waiver  filed  with  the  War  Depart- 
ment, relinquish  such  right,  in  which  case  the  examination 
of  such  officers  shall  be  conducted  by  boards  composed  as 
shall  be  directed  by  the  Secretary  of  War.  Sec.  1,  act  of 
July  27,  1892  (27  Stat.  L.,  276}. 

PROMOTION   OF   CADETS. 

cadets  to   be     944.  That  when  any  cadet  of  the  United  States  Military 

commissioned 

second   lieuten-  Academy  has  gone  through  all  its  classes  and  received  a 

ants  in  any  arm  •        V    *  , 

or  corps  m  which  regular  diploma  from  the  academic  staff,  he  may  be  pro- 
^*May  i7?i886?V.  moted  and  commissioned  as  a  second  lieutenant  in  any  arm 

24,  p.  50. 

'Section  2  of  the  act  of  May  17,  1886  (24  Stat.  L.,  276)  provides  "that  the  exami- 
nation of  officers  of  the  Corps  of  Engineers  and  Ordnance  Department  who  were 
officers  or  enlisted  men  in  the  regular  or  volunteer  service,  either  in  the  Army, 
Navy,  or  the  Marine  Corps,  during  the  War  of  the  Rebellion,  shall  be  conducted  by 
boards  composed  in  the  same  manner  as  for  the  examination  of  other  officers  of  their 
respective  corps  and  department;  and  the  examinations  shall  embrace  the  same  sub- 
jects prescribed  for  all  other  officers  of  similar  grades  in  the  Corps  of  Engineers  and 
Ordnance  Department,  respectively." 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  335 

or  corps  of  the  Army  in  which  there  may  be  a  vacancy  and 
the  duties  of  which  he  may  have  been  judged  competent 
to  perform ;  and  in  case,  there  shall  not  at  the  time  be  a 
vacancy  in  such  arm  or  corps,  he  may,  at  the  discretion  of 
the  President,  be  promoted  and  commissioned  in  it  as  an 

additional  second  lieutenant,  with  the  usual  pay  and  allow-    Additional  sec- 
ond lieutenants. 

ances  of  a  second  lieutenant,  until  a  vacancy  shall  happen. 
Act  of  May  17,  1886  (34  Stat.  L.,  50). 

945.  That  every  cadet  who  has  heretofore  graduated  or 
may  hereafter  graduate  at  the  West  Point  Military  Acad- 

emy,  and  who  has  been  or  may  hereafter  be  commissioned  U|^ni26i  B  s 
a  second  lieutenant  in  the  Army  of  the  United  States,  24De«-52o,  isse,  v. 
under  the  laws  appointing  such  graduates  to  the  Army, 
shall  be  allowed  full  pay  as  second  lieutenant  from  the  date 
of  his  graduation  to  the  date  of  his  acceptance  of  and 
qualification  under  his  commission  and  during  his  gradua- 
tion leave,  in  accordance  with  the  uniform  practice  which 
has  prevailed  since   the  establishment  of  the   Military 
Academy.    Act  of  December  20,  1886  (24  Stat.  L.,  351). 

PROMOTION  OF  ENLISTED  MEN. 

946.  That  the  President  be,  and  he  is  hereby,  authorized    Promotion  of 

.,  _  _        ,.    .      ,  _     ,       enlisted  men. 

to  prescribe  a  system  of  examination  of  enlisted  men  of  the   sec.  1214,  B.  s. 
Army,  by  such  boards  as  may  be  established  by  him,  to 
determine  their  fitness  for  promotion  to  the  grade  of  second 
lieutenant:  Provided,  That  all  unmarried  soldiers  under    Jjf^jgjj^j: 
thirty  years  of  age,  who  are  citizens  of  the  United  States,  27,p.336! 
are  physically  sound,  who  have  served  honorably  not  less 
than  two  years  in  the  Army,  and  who  have  borne  a  good 
moral  character  before  and  after  enlistment,  may  compete 
for  promotion  under  any  system  authorized  by  this  act.1 
Act  of  July  30,  1892  (27  Stat.  L.,  336). 

947.  That  the  members  and  recorder  of  such  boards  asbo^daminatioir 
may  be  established  by  the  President,  under  the  provisions  '  sec.'2,i&«z. 

'Under  the  authority  conferred  by  this  statute,  the  following  system  of  examina- 
tion has  been  prescribed: 

With  a  view  to  the  selection  of  proper  enlisted  men  of  the  Army  as  "candidates 
for  promotion"  to  the  grade  of  second  lieutenant,  each  department  commander  will, 
as  soon  as  practicable  after  March  15  of  each  year,  convene  a  board  of  five  officers 
for  the  preliminary  examination  of  the  soldiers  of  his  command  who  are  legally 
qualified  applicants  for  a  commission,  to  determine  their  eligibility  for  the  competi- 
tive examination.  This  board  will  institute  a  rigid  inquiry  into  the  character,  capac- 
ity, record,  and  qualifications  of  the  several  candidates,  and  will  recommend  none 
for  competitive  examination  who  are  not  able  to  establish  their  fitness  for  promo- 
tion to  the  entire  satisfaction  of  the  board.  On  September  1  of  each  year  the  War 
Department  will  convene  a  board  of  five  officers  for  the  final  competitive  examination 
to  determine  the  fitness  and  order  of  merit  for  promotion  of  the  soldiers  who  have 
successfully  passed  the  preliminary  examination.  Two  members  of  each  board  will 
be  officers  of  the  Medical  Department.  (Par.  25,  A.  E,.,  1895.) 

Each  enlisted  man  recommended  in  accordance  with  the  law  and  the  foregoing 
regulation  will  receive  from  the  Adjutant-General  of  the  Army  a  certificate  of  eligi- 
bility for  appointment  to  the  grade  of  second  lieutenant  and  will  be  known  as  a 
"candidate"  for  promotion.  He  will  have  the  title  "candidate"  prefixed  to  his 
name  in  all  rolls,  returns,  orders,  and  correspondence  in  which  it  appears,  and  will 
be  entitled  to  wear  the  candidate's  stripes  on  the  sleeves  of  uniform  coat,  blouse, 
and  overcoat  so  long  as  he  holds  this  specially  honorable  position.  The  candidate's 
stripe  will  be  worn  on  the  upper  half  of  each  cuff.  It  will  consist  of  a  double  stripe 
running  the  length  of  the  cuff,  pointed  at  the  upper  end  and  with  a  small  button 
below  the  point  of  the  stripe;  for  uniform  coat,  of  gold  braid;  for  blouse  and  over- 


336  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  the  preceding  section,  shall  be  sworn  in  every  case  to 
discharge  their  duties  honestly  and  faithfully;  and  the 
boards  may  examine  witnesses,  and  take  depositions,  for 
which  purposes  they  shall  have  such  powers  of  a  court  of 
inquiry  as  may  be  necessary.  Sec.  2,  ibid. 

Examinations.      948.  That  the  vacancies  in  the  grade  of  second  lieutenant 

5ec.  3,  Md.  heretofore  filled  by  the  promotion  of  meritorious  non-commis- 
sioned officers  of  the  Army,  under  the  provisions  of  section 
three  of  the  act  approved  June  eighteenth,  eighteen  hun- 
dred and  seventy-eight,  shall  be  filled  by  the  appointment 
of  competitors  favorably  recommended  under  this  act,  in 
the  order  of  merit  established  by  the  final  examination. 

certificates  of  Each  man  who  passes  the  final  examination  shall  receive 
a  certificate  of  eligibility,  setting  forth  the  subjects  in 
which  he  is  proficient  and  the  especial  grounds  upon  which 
the  recommendation  is  based:  Provided,  That  not  more 
than  two  examinations  shall  be  accorded  to  the  same  com- 
petitor. Sec.  3,  ibid. 

Effect  of  court-  949.  That  all  rights  and  privileges  arising  from  a  certifi- 
cate  of  eligibility  may  be  vacated  by  sentence  of  a  court- 
martial,  but  no  soldier,  while  holding  the  privileges  of  a 
certificate,  shall  be  brought  before  a  garrison  or  regimental 
conrt-martial  or  summary  court.  Sec.  4,  ibid. 

coat,  of  cloth  of  same  color  as  facings  of  uniform  ;  width  of  braid  or  cloth,  one- 
quarter  inch  ;  width  of  space  between  braid,  one-eighth  inch.  (Par.  26,  ibid.) 

The  eligibility  of  a  candidate  for  appointment  as  second  lieutenant  and  his  privi- 
leges as  candidate  terminate  the  1st  of  September  next  succeeding  his  competitive 
examination,  unless  he  shall  again  be  recommended  on  competitive  examination.  A 
candidate  who  becomes  ineligible  by  reason  of  age  will  be  entitled  to  wear  the  can- 
didate's stripe  on  the  left  sleeve  so  long  as  he  maintains  his  good  standing  in  the 
service.  Having  passed  a  departmental  board,  but  having  failed  to  pass  the  com- 
petitive board,  he  may  again  be  examined  by  the  competitive  board  on  proper  appli- 
cation made  through  department  headquarters  ;  he  will  not  be  required  to  pass  a 
departmental  board  a  second  time.  An  applicant  who  twice  fails  in  competitive 
examination  to  obtain  a  certificate  of  eligibility  as  candidate  for  promotion  can  not 
again  compete  for  that  position.  (Par.  27,  ibid.) 

Candidates  who  may  be  guilty  of  misconduct  will  be  promptly  reported  to  the 
Adjutant-General  of  the  Army,  through  regimental  and  department  headquarters, 
the  report  to  contain  a  full  statement  of  the  alleged  misconduct,  with  names  of  wit- 
nesses. The  department  commander  will  see  that  the  candidate  has  a  fair  and  im- 
partial hearing,  and  will  forward  the  report  for  the  decision  of  the  Secretary  of  War. 
(Par.  28,  ibid.) 

Candidates  for  promotion  will  not  be  deprived  of  the  privileges  of  their  position 
unless  by  sentence  of  a  general  court-martial  or  the  order  of  the  Secretary  of  War, 
except  by  operation  of  law  or  regulations.  While  holding  the  privileges  of  that 
position  they  will  not  be  brought  before  a  summary  or  field  officer's  court,  or  a  gar- 
'  rison  or  regimental  court-martial.  (Par.  29,  ibid.) 

A  soldier  to  bo  eligible  for  the  position  of  candidate  for  promotion  must  be  a  citi- 
zen of  the  United  States,  unmarried,  between  21  and  30  years  of  age  on  the  1st  of 


will  have  served  honorably  not  less  than  two  years,  exclusive  of  technical  service 
due  to  furlough  or  other  absence  from  duty  in  "his  own  interest  ;  (a)  nor  for  the  final 
competitive  examination  unless  he  shall  have  so  served.  Applications  will  be  made 
to  department  commanders  on  or  before  February  1  of  each  year,  and  company  com- 
manders in  forwarding  them  will  certify  all  furloughs  had  by  applicants,  stating 
under  what  authority  they  were  granted.  (Par.  30,  ibid.) 

a  Referring  to  paragraph  30,  Army  Regulations,  the  phrase  "exclusive  of  tech- 
nical service  due  to  furlough  or  other  absence  from  duty  in  his  own  interest  '  '  will  not 
apply  to  leave  of  absence  or  furlough  granted  to  an  enlisted  man  during  the  first 
two  years  of  enlistment  not  exceeding  fifteen  days  in  all,  nor  to  such  longer  furlough 
as  is  now  authorized  by  paragraph  107,  Army  Regulations,  in  a  case  which  may  be 
determined  by  competent  authority  to  be  extraordinary.  (Decision  Assistant  Secre- 
tary of  War,  January  13,  1896.  Circular  No.  2,  A.  G.  O,,  1896.) 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  337 

LEAVES  OF  ABSENCE  —  SICK  LEAVES. 

950.  Officers  when  absent  on  account  of  sickness  or8e^Jdurin«ab- 
wounds,  or  lawfully  absent  from  duty  and  waiting  orders,  2oAv  gif'  P8629o- 
shall  receive  full  pay;  when  absent  with  leave,  for  other  Ma£  ' 

causes,  full  pay  during  such  absence  not  exceeding  in  the  2«  • 


aggregate  thirty  days  in  one  year,  and  half  pay  during  Jj  isjo,  s24, 
such  absence  exceeding  thirty  days  in  one  year.    When  isw,  v.  is,  p.  43.  ' 
absent  without  leave,  they  shall  forfeit  all  pay  during  such 
absence,  unless  the  absence  is  excused  as  unavoidable.1 

951.  That  an  act  approved  May  eighth,  eighteen  hun-  Leav<>  on  ft»u 
dred  and  seventy-  four,  in  regard  to  leave  of  absence  of  ^Juiyra.isre.v. 
Army  officers,  be,  and  the  same  is  hereby,  so  amended 
that  all  officers  on  duty  shall  be  allowed,  in  the  discretion 
of  the  Secretary  of  War,  sixty  days'  leave  of  absence 
without  deduction  of  pay  or  allowances  :  Provided,  That 
the  same  be  taken  once  in  two  years  :  And  provided  fur- 
ther, That  the  leave  of  absence  may  be  extended  to  three 
months,  if  taken  once  only  in  three  years,  or  four  months 
if  taken  once  only  in  four  years.2  Act  of  July  29,  1876  (19 
Stat.  L.j  102). 

•An  officer  of  the  Army  who  is  ordered,  even  on  his  own  request,  to  proceed  to  a 
particular  place,  including  his  home,  and  "there  a  wait  orders,  'reporting  thence  by 
letter  to  the  Adjutant-General  of  the  Army  and  to  the  headquarters  of  the  Depart- 
ment to  which  he  then  belongs,  is  not  an  officer  "absent  from  duty  with  leave" 
within  the  act  of  March  3,  1863  (12  Stat.  L.,  736),  which  enacts  that  "any  officer  ab- 
sent from  duty  with  leave,  except  from  sickness  or  wounds,  shall  during  his  absence 
receive  half  the  pay  and  allowances  prescribed  by  law  and  no  more."  Such  an  offi- 
cer is  waiting  orders  in  pursuance  of  law,  but  is  not  absent  from  dutv  on  leave.  TJ. 
S.  v.  Williamson,  23  Wall.,  411. 

This  statute  is  amendatory  of  the  act  of  May  8,  1874,  which  provided  "that  all 
officers  on  duty  at  any  point  west  of  a  line  drawn  north  and  south  through  Omaha 
City,  and  north  of  a  line  drawn  east  and  west  upon  the  southern  boundary  of  Ari- 
zona, shall  be  allowed  sixty  days'  leave  of  absence  without  deduction  of  pay  or  allow- 
ances: Provided,  That  the  same  is  taken  but  once  in  two  years:  And  provided 
further,  That  the  leave  of  absence  may  be  extended  to  three  months,  if  taken  once 
only  in  three  years;  or  four  months  if  taken  once  only  in  four  years." 

2  LEAVES  OF  ABSENCE. 

In  time  of  peace  the  commander  of  a  post  may  grant  leaves  of  absence  not  to 
exceed  seven  days  at  one  time,  or  in  the  same  month  ;  and  he  may  give  permission 
to  apply  to  the  proper  authority  for  extension  of  such  leaves  for  a  period  not  to 
exceed  twenty  -three  days.  (Par.  44,  A.  E.,  1895.) 

The  commander  of  a  post  may  take  leave  of  absence  not  to  exceed  seven  days  at 
one  time,  or  in  the  same  month,  reporting  the  fact  to  his  next  superior  commander. 
(Par.  45,  ibid.) 

A  department  commander  may  grant  leaves  for  one  month  and  the  Commanding 
General  of  the  Army  for  two  months  ;  or  they  may  extend  to  such  periods  those 
granted  by  subordinate  commanders.  Applications  for  leaves  of  more  than  two 
months'  duration,  or  from  officers  of  the  staff  corps  and  departments  for  more  than 
one  month,  or  from  department  commanders  desiring  leaves  of  absence  to  pass 
beyond  the  territorial  limits  of  their  commands,  will  be  forwarded  to  the  Adjutant- 
General  of  the  Army  for  the  action  of  the  Secretary  of  War.  (Par.  46,  ibid.) 

An  application  for  leave  must  state  its  desired  duration.  Intermediate  command- 
ers will  indorse  their  recommendations  upon  the  application.  (Par.  47,  ibid.) 

Chiefs  of  bureaus  may  grant  leaves  for  one  month  to  officers  of  their  respective 
corps  serving  under  their  immediate  direction,  or  extend  to  that  period  those  already 
granted  to  such  officers.  (Par.  48,  ibid.) 

Leaves  of  absence  for  three  months,  from  date  of  graduation,  will  be  allowed  to 
graduates  of  the  Military  Academy.  They  will  not  be  counted  against  them  in  sub- 
sequent applications  for  leave,  but  can  not  be  postponed  to  another  time.  (Par.  49, 
ibid.) 

For  statutes  regulating  pay  during  leave  of  absence,  see  the  title  "Pay  during 
absence"  in  the  chapter  entitled  THE  PAY  DEPARTMENT. 

SICK  LEAVES. 

The  Commanding  General  of  the  Army  and  department  commanders  have  the 
same  authority  to  grant  leaves  of  absence  on  account  of  sickness  as  to  grant  ordinary 


338  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

TRANSFERS. 

thestaff6™  to  952t  Officers  may  be  transferred  from  the  line  to  the  staff 
52^aIV321818i9'  °f  tne  Army  without  prejudice  to  their  rank  or  promotion 
Apr.  24,  1816,  c!  in  the  line:  but  no  officer  shall  hold,  at  the  same  time,  an 

69,  s.9,  v.  3,  p.  298; 

June  is,  1846,^.  appointment  in  the  line  and  an  appointment  in  the  staff 
sec.  1205,  B.S.  which  confer  equal  rank  in  the  Army.  When  any  officer 
so  transferred  has,  in  virtue  of  .seniority,  obtained  or  be- 
come entitled  to  a  grade  of  his  regiment  equal  to  the  grade 
of  his  commission  in  the  staff,  he  shall  vacate  either  his 
commission  in  the  line  or  his  commission  in  the  staff.1 

RESIGNATIONS. 

e8-  953<  ^nv  officer  who,  having  tendered  his  resignation, 
quits  his  post  or  proper  duties,  without  leave,  and  with 
intent  to  remain  permanently  absent  therefrom,  prior  to 
due  notice  of  the  acceptance  of  the  same,  shall  be  deemed 
and  punished  as  a  deserter.2  Forty-ninth  article  of  war. 

leaves.  Permission  to  go  beyond  the  limits  of  the  command  in  which  the  applicant 
is  stationed  will  be  given  only  when  the  certificate  of  the  medical  officer  shall  state 
explicitly  that  it  is  necessary  to  afford  rapid  or  perfect  recovery.  (Par.  61,  A.  E,., 
1895.) 

Application  for  leave  of  absence  on  account  of  sickness  will  be  made  to  the  com- 
manding officer,  who  will  refer  it  to  the  surgeon.     The  surgeon  will  examine  the 


if  known,  and  the  period  during  which  the  officer  has  Buffered  from  it.  He  will  also 
give  his  opinion  as  to  whether  the  disease,  wound,  or  disability  can  be  satisfactorily 
treated  within  the  department  in  which  the  officer  is  stationed,  or  whether  a  change 
of  climate  or  locality  within  the  United  States  is  necessary  to  afford  more  rapid  or 
perfect  recovery,  in  which  case  the  special  place  or  region  recommended  will  be 
designated,  with  reasons  therefor.  The  surgeon  will  also  state  whether,  in  his  opin- 
ion, the  disease,  wound,  or  disability  requires  treatment  by  a  specialist;  and  if  so, 
the  nearest  place  where  it  can  be  obtained;  also  whether  the  wound  or  disease  in- 
capacitates the  officer  from  all  duty,  or  whether  he  can  perform  special  duty ;  and  if 
so,  the  kind  that  he  may  undertake  without  endangering  his  ultimate  cure.  (Par. 
62,  ibid.) 

1  Officers  transferred  from  one  arm  or  corps  to  another,  on  mutual  application,  will 
be  nominated  for  reappointment  with  rank  as  of  the  date  of  the  commission  of  the 
junior  officer  previous  to  the  transfer,  and  upon  confirmation  will  berecommissioned 
accordingly.    An  officer  of  the  lowest  grade  in  any  arm  or  corps  who  may  be  trans- 
ferred, on  his  own  application,  to  a  vacancy  in  his  grade  in  any  other  armor  corps 
will  take  rank  next  after  the  junior  officer  of  the  arm  or  corps  to  which  he  is  trans- 
ferred, and  will  be  nominated  for  reappointment,  with  a  new  date  of  rank  if  neces- 
sary to  fix  his  proper  position,  and  upon  confirmation  will  be    recom missioned 
accordingly.    These  new  appointments  and  commissions  will  determine  the  rank  of 
transferred  officers  in  their  regiments  and  corps,  as  well  as  in  the  Army.     (Par.  42, 
A.  K.,  1895.) 

Officers  in  each  arm  of  the  service  will  be  transferred  from  one  regiment  to  another 
therein,  as  the  interests  of  the  service  require,  by  orders  from  the  War  Department, 
without  change  of  rank  or  commission.  The  transfer  or  exchange  of  company  offi- 
cers of  a  regiment  will  be  made  by  the  Commanding  General  of  the  Army.  (Par. 
43,  ibid.)  See  also  paragraph  697,  ante. 

2  A  valid  resignation  and  an  unconditional  acceptance  of  it,  accompanied  by  proper 
notification  of  it,  operate  to  remove  an  officer  from  the  military  service.    Bennett  v. 
U.  S.,  19  C.  Cls.  R.,  379.    And  a  new  appointment  is  required  to  restore  him  to  the 
office.    12  Opin.  Att.  Gen.,  555.    An  immediate  and  unconditional  resignation  severs, 
absolutely,  an  officer's  connection  with  the  Army.    Turnley  v.  U.  S.,  24  C.  Cls.  E.,  317. 
It  has  been  held  by  a  United  States  court  that  "a  civil  officer  has  a  right  to  resign 
his  office  at  pleasure,  and  it  is  not  in  the  power  of  the  Executive  to  compel  him  to 
remain  in  office."    In  a  case  of  a  military  officer,  however,  this  right  is  subject  to 
certain  restrictions  growing  out  of  the  military  status.     Thus,  while  in  time  of 
peace,  an  officer  of  the  Army,  in  good  standing,  i'a  in  general  entitled  to  tender  and 
have  accepted  his  resignation  yet,  in  time  of  war,  or  when  grave  embarrassment  to 
A1  -  -  ,-.,.,.  ?   -his duty,  the  accept- 


ance of  his  resignation  may  properly  be  refused.    And  so,  where  he  has  tendered 
his  resignation  while  under  charges,  and  a  failure  of  justice  might  result  from  allow- 
ing him  to  evade  trial.    Dig.  Opin.  J.  A.  G.,  662. 
A  military  officer  who  has  tendered  his  resignation,  but  who  continues  in  service, 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  339 


954.  Any  officer  of  the  Army  who  accepts  or  holds  any 
appointment  in  the  diplomatic  or  consular  service  of 
Government  shall  be  considered  as  having  resigned  his  38,  s.  2,'v.  is.  P.  bsl 
place  in  the  Army,  and  it  shall  be  filled  as  a  vacancy. 

DISMISSAL. 

955.  No  officer  of  the  Army  who  has  been  or  may  be  dis- 

missed  from  the  service  by  the  sentence  of  a  general  court-  cej®;ly  20  1868  c 
martial,  formally  approved  by  the  proper  reviewing  author-  18|;J:  J 
ity,  shall  ever  be  restored  to  the  military  service,  except 
by  a  reappointmeut  confirmed  by  the  Senate.1 

956.  The  President  is  authorized  to  drop  from  the  rolls  of 
the  Army  for  desertion  any  officer  who  is  absent  from  duty 
three  months  without  leave  :  and  no  officer  so  dropped  shall    T10.6-  , 

July  15,  1870,  c. 
-  294,  ».  17,  v.  16,  p. 

doing  actual  duty,  is  entitled  to  pay  up  to  the  time  he  is  notified  of  the  acceptance  319;  July  13,1866, 
of  his  resignation.    Barger  v.  U.  S.",  6  C.  Cls.  R.,  35  ;  Dig.  J.  A.  Gen.,  662,  663.  c.  176,  s.  5,  v.  14,  p. 

A  mere  offer  to  resign,  or  tender  of  resignation  is  revocable  at  any  time  before  92. 
acceptance.    But  after  an  acceptance,  and  before  effect  has  been  given  to  the  same     Sec.  1229,  R.  S. 
by  notice,  the  offer  can  not  be  withdrawn,  or  materially  modified  oy  the  act  of  the 
officer  alone,  but  the  consent  of  the  appointing  power  is  also  necessary.    Dig.  J.  A.G., 
663. 

The  acceptance  of  an  officer's  resignation  becomes  operative  and  severs  him  from 
the  military  service  upon  his  receiving  either  actual  or  constructive  notice  of  such 
acceptance.  Dig.  J.  A.  G.,  663. 

While  a  tender  of  his  resignation  by  an  insane  officer  is,  in  general,  without  legal 
effect,  and  incapable  of  being  legally  accepted,  yet  where  a  resignation  so  tendered 
was,  in  the  absence,  at  the  War  Department,  of  any  knowledge  of  his  insanity, 
formally  accepted,  held  that  the  acceptance  could  not  be  legally  revoked,  and  that 
the  appointment  to  the  vacancy  was  valid  and  operative.  Dig.  J.  A.  G.,  663.  When 
an  officer  tenders  his  resignation,  and  the  question  of  his  sanity  is  passed  upon  by 
his  commanding  officer,  and  it  is  by  him  determined  that  he  is  of  sane  mind,  a  court 
cannot  re-examine  the  question.  Blake  v.  U.  S.,  13  C.  Cls.  R.,  402. 

Where  an  officer  appointed  during  a  recess  of  the  Senate,  after  taking  the  oath  of 
office  and  notifying  the  Department  of  his  acceptance,  is  ordered  to  return  the 
appointment,  his  obeying  the  order  is  not  a  resignation.  O'Shea  v.  U.  S.,  28  C.  Cls. 
R.,  392. 

An  officer  who  places  his  conditional  resignation  in  the  hands  of  his  commanding 
officer,  to  be  forwarded  by  that  officer  upon  a  breach  of  the  said  condition,  of  which 
breach  such  commanding  officer  is  to  be  the  judge,  and  authorizes  him  to  insert  a 
date  in  such  resignation  and  to  forward  it  for  acceptance,  is  held  to  have  made  a 
valid  tender  of  his  resignation,  and,  upon  its  acceptance  by  the  President,  such 
officer  ceases  to  be  an  officer  of  the  Army.  Mimmack  v.  U.  S\,  97  U.  S.,  426,  436;  12 
Opin.  Att.  Gen.,  555. 

If  an  officer's  connection  with  the  service  has  been  legally  severed  by  resignation, 
dismissal,  or  otherwise,  he  can  again  enter  only  by  the  appointment  of  the  President, 
with  the  consent  of  the  Senate.  Montgomery  v.  U.  S.,  19  C.  Cls.  R.,  338;  Miller  v. 
U.  S.,  ibid,  338;  Mimmack  v.  U.  S.,  97  U.  S.,  426;  McElrath  v.  U.  S.,  102  U.  S.,  426: 
Blake  v.  U.  S.,  103  U.  S.,  227;  Keyes  v.U.  S.,  109  U.  S.,  336,  339. 

dismissal  by  Executive  order  is  quite  distinct  from  dismissal  by  sentence.  The 
latter  is  a  punishment;  the  former  is  removal  from  office.  The  power  to  dismiss 
which,  as  being  an  incident  to  the  power  to  appoint  public  officers,  had  been 
regarded  since  1789  as  vested  in  the  President  by  the  Constitution  was,  for  the  first 
time,  by  section  5  of  the  act  of  July  13,  1886  (re  enacted  in  the  second  clause  of  the 
present  Ninety  -ninth  Articleof  War  and  in  section  1229,  Revised  Statutes),  expressly 
divested  by  Congress,  in  so  far  as  respects  its  exercise  in  time  of  peace.  By  the 
statute  it  is  now  authorized  only  in  time  of  war.  Dig.  J.  A.  G.,  369,  par.  1. 

The  practical  results  of  this  statute,  in  connection  with  other  provisions  of  law 
bearing  upon  the  subject,  are  these:  That  in  time  of  war  the  President  may  dismiss 
an  officer  from  service  at  any  moment  and  for  any  cause;  that  in  time  of  peace  he 
may  dismiss  him  for  cause,  with  the  co-operation  of  a  court-martial;  or  remove  him 
without  oause  with  the  consent  of  the  Senate.  Street  v.  U.  S.,  24  C.  Cls.  R.,  248  ;  Blake 
v.  U.S.,  103  U.  S.,227;  McElrath  v.  U.  S.,  102  TJ.  S.,  426;  Fletcher  v.  U.  S.,  26  C.Cls. 
R.,  541. 

The  President  has  the  power  to  remove  an  officer  of  the  Army  by  the  appointment 
of  another  in  his  place,  by  and  with  the  advice  and  consent  of  the  Senate,  and  such 
power  is  not  withdrawn  by  the  provisions  of  section  5  of  the  act  of  July  13,  1866 
(section  1229,  Revised  Statutes),  and  this  provision  does  not  restrict  the  power  of  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate,  to  displace  officers  of 
the  Army  and  Navy  by  the  appointment  of  others  in  their  places.  Keyes  v.  U.  S., 
109  U.S.,  336,  339;  Blake  v.  U.  S.,  103  U.  S  ,  227;  McElrath  v.  U.  S.,  102  U.  S.,  426;  Mim- 
mack v.  U.  S.,  97  U.  S.,  426;  U.S.  v.  Corson,  114  U.  S.,619;  Montgomery  v.  U.S.,  190. 
Cls.  R.,370;  Bonnett  v.  U.  S.,ibid,  379;  Palen  v.  U.  S.,  ibid,  389;  McBlair  v.  U.S., 
ibid,  528  ;  Vanderslice  v.  U.  S.,  ibid,  480  ;  15  Opin.  Att.  Gen.,  407. 


340  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

be  eligible  for  reappointment.     And  no  officer  in  the  mili- 
tary, or  naval  service  shall  in  time  of  peace  be  dismissed 
from  service  except  upon  and  in  pursuance  of  the  sentence  of 
a  court-martial  to  that  effect,  or  in  commutation  thereof.1 
officers    dis-     957.  When  any  officer,  dismissed  by  order  of  the  Presi- 

missed  by  Presi- 

dentinaydeniami  dent,  makes,  in  writing,  an  application  for  trial,  setting 
Mar.  3, 1865,  c.  forth,  under  oath,  that  he  has  been  wrongfully  dismissed, 

79   s   12  v   W,  p. 

489;  June 22, 1874,' the  President  shall,  as  soon  as  the  necessities  of  the  service 

c.  392,  s.2,  v.  18.  p.  .,  ,.    ,     ,  i         /v» 

192.  may  permit,  convene  a  court-martial,  to  try  such  officer  on 

the  charges  on  which  he  shall  have  been  dismissed.  And 
if  a  court-martial  is  not  so  convened  within  six  months 
from  the  presentation  of  such  application  for  trial,  or  if 
such  court,  being  convened,  does  not  award  dismissal  or 
death  as  the  punishment  of  such  officer,  the  order  of  dis- 
missal by  the  President  shall  be  void.2 


DETAILS   TO    COLLEGES. 


Par. 


958.  Details  to  college  duty. 

959.  Ordnance  stores,  etc. 

960.  Detail  as  professor  in  a  col- 


lege. 


Par. 

961.  Detail  of  retired  officers. 

962.  Number  of  officers  increased. 

963.  Detail  of  retired  officers  not 

limited ;  issues  of  ordnance. 


DETAILS   FROM   THE   ACTIVE   LIST. 


Details  to  coi-  95g.  The  President  may,  upon  the  application  of  any 
e|eptU2?,'i888,v.  established  military  institute,  seminary  or  academy,  college 

Sec.  1225,  B.  s.  or  university  within  the  United  States,  having  capacity  to 
educate  at  the  same  time  not  less  than  one  hundred  and 
fifty  male  students,  detail  an  officer  of  the  Army  or  Navy 
to  act  as  superintendent  or  professor  thereof;  but  the  num- 

Limit.  ber  ot  officers  so  detailed  shall  not  exceed  (one  hundred]3 

from  the  Army  and  ten  from  the  Navy,  being  a  maximum 
of  one  hundred  and  ten,  at  any  time,  and  they  shall  be 
apportioned  throughout  the  United  States,  first,  to  those 
State  institutions  applying  for  such  detail  that  are  required 
to  provide  instruction  in  military  tactics  under  the  pro- 

1  The  jurisdiction  to  find  and  determine  the  fact  of  desertion,  under  this  section, 
is  vested  in  the  President  alone,  and  his  decision  thereon  can  not  be  reviewed  by  the 
courts.    Newton  v.  TJ.  S.,  18  C.  Cls.  B,.,  435.    The  discharge  of  an  officer  does  not  re- 
lieve the  Government  from  its  obligations  until  he  is  notified  of  the  fact  and  actu- 
ally discharged  from  service.    Gould  v.  U.  S.,  19  C.  Cls.  R  ,  593.    A  summary  dismissal 
of  an  officer  does  not  properly  take  effect  until  the  order  of  dismissal,  or  an  official 
copy  of  the  same,  is  delivered  to  him,  or  he  is  otherwise  officially  notified  of  the  fact 
of  his  dismissal.    Dig.  J.  A.  G.,  370,  par.  5.    A  dismissal  of  an  officer  by  Executive 
order  does  not  operate  to  disqualify  him  for  reappointment  to  military  office,  or  for 
appointment  to  civil  office  under  the  United  States.    Ibid,  370,  par.  7 

2  To  take  advantage  of  the  benefit  conferred  by  this  section,  the  officer  must  ap- 
ply for  trial  within  a  reasonable  time  after  dismissal,  or  acquiescence  will  be  pre- 
sumed.   A  delay  of  nine  years  in  a  particular  case  held  to  create  such  presumption 
of  acquiescence.    Newton  v.  U.  S.,  18  C.  Cls.  R.,435;  Germaine  v.  U.  S.,  26,  ibid,  383. 

Where  the  President  is  authorized  by  law  to  reinstate  a  discharged  Army  officer, 
he  may  do  so  without  the  advice  and  consent  of  the  Senate.  Collins  v.  U.  S.,  15  C. 
Cls.  R.,  22  For  a  list  of  officers  so  reinstated  see  Collins  Case,  14  C.  Cls.  R.,  568, 571. 

s  Increased  from  50  to  75  by  the  act  of  January  13,  1891  (26  Stat,  L.,  716),  and  to 
100  by  the  act  of  November  1,  1893  (28  Stat.  L.,  7),  (par.  962,  post). 


THE   MILITARY    LAWS    OF   THE   UNITED    STATES.  341 

visions  of  the  act  of  Congress  of  July  second,  eighteen 
hundred  and  sixty-two,  donating  lands  for  the  establish- 
ment of  colleges  where  the  leading  object  shall  be  the 
practical  instruction  of  the  industrial  classes  in  agriculture 
and  the  mechanic  arts,  including  military  tactics;  and 
after  that,  said  details  to  be  distributed,  as  nearly  as  may 
be  practicable,  according  to  population. 

959.  The  Secretary  of  War  is  authorized  to  issue,  at  his  f°J ^JJJ0^8*0108 
discretion  and  under  proper  regulations  to  be  prescribed    sept.  20,  isss.v. 
by  him,  out  of  ordnance  and  ordnance  stores  belonging  to 

the  Government,  and  which  can  be  spared  for  that  purpose, 
such  number  of  the  same  as  may  appear  to  be  required  for 
military  instruction  and  practice  by  the  students  of  any 
college  or  university  under  the  provisions  of  this  section, 
and  the  Secretary  shall  require  a  bond  in  each  case,  in 
double  the  value  of  the  property,  for  the  care  and  safe 
keeping  thereof,  and  for  the  return  of  .the  same  when 
required:  Provided,  That  nothing  in  this  act  shall  be  so 
construed  as  to  prevent  the  detail  of  officers  of  the  Engi- 
neer Corps  of  the  Navy  as  professors  in  scientific  schools 
or  colleges  as  now  provided  by  act  of  Congress  approved 
February  twenty-sixth,  eighteen  hundred  and  seventy- 
nine,  entitled  "An  act  to  promote  a  knowledge  of  steam- 
engineering  and  iron-ship  building  among  the  students  of 
scientific  schools  or  colleges  in  the  United  States;"  and 
the  Secretary  of  War  is  hereby  authorized  to  issue  ord- 
nance and  ordnance  stores  belonging  to  the  Government 
on  the  terms  and  conditions  hereinbefore  provided  to  any 
college  or  university  at  which  a  retired  officer  of  the  Army 
may  be  assigned  as  provided  by  section  twelve  hundred 
and  sixty  of  the  Eevised  Statutes.1  Act  of  September  26, 
1888  (25  Stat.  L.,  491). 

DETAILS   FROM   THE    RETIRED   LIST. 

960.  Any  retired  officer  may,  on  his  own  application,  be    Detail  as  Pro- 

fessor in  a  college. 

detailed  to  serve  as  professor  in  any  college.  But  while  so  July  p.  187°. c- 
serving,  such  officer  shall  be  allowed  no  additional  compen-  320';  Feb! 27,1877, 

,.  c.  69,  v.  19,  p.  242. 

SatlOn.  Sec.  1260,  R.  S. 

961.  That  upon  the  application  of  any  college,  university, 
or  institution  of  learning  incorporated  under  the  laws  of 
any  State  within  the  United  States,  having  capacity  at  the 

same  time  to  educate  not  less  than  one  hundred  and  fifty  Detail  of  retired 
male  students,  the  President  may  detail  an  officer  of  the  °  June  ie,  isso.v. 
Army  on  the  retired  list  to  act  as  president,  superin- 


JThis  statute  repeals  and  replaces  section  1225,  Revised  Statutes,  as  amended  by 
the  act  of  July  5,  1884,  "  saving  always,  however,  all  acts  and  things  done  under  the 
said  amended  section  as  heretofore  existing." 


342  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

tendent,  or  professor  thereof;  and  such  officer  may  receive 
from  the  institution  to  which  he  may  be  detailed  the  differ- 
ence between  his  retired  and  full  pay,  and  shall  not  receive 

Additional  pay.  any  additional  pay  or  allowance  from  the  United  States.1 
Act  of  June  16,  1880  (21  Stat.  L.,  113). 

Number  of  cm-     962.  That  section  twelve  hundred  and  twenty-five  of  the 

cers  increased. 

o  NOV.  i,  1893,  v.  Ee vised  Statutes,  concerning  details  of  officers  of  the  Army 
and  Navy  to  educational  institutions,  be,  and  the  same  is 
hereby,  amended  so  as  to  permit  the  President  to  detail 
under  the  provisions  of  said  act  not  to  exceed  one  hundred 

Duration.  officers  of  the  Army  of  the  United  States;  and  no  officer 
shall  be  thus  detailed  who  has  not  had  five  years  service 
in  the  Army  and  no  detail  to  such  duty  shall  extend  for 
more  than  four  years  and  officers  on  the  retired  list  of  the 
Army  may  upon  their  own  application  be  detailed  to  such 
duty  and  when  so  detailed  shall  receive  the  full  pay  of 

Limit    as    to  their  rank,2  and  the  maximum  number  of  officers  of  the 

number. 

Army  and  Navy  to  be  detailed  at  any  one  time  under  the 
provisions  of  the  act  approved  January  thirteenth,  eighteen 
hundred  and  ninety-one,  amending  section  twelve  hundred 
and  twenty-five  of  the  Eevised  Statutes  as  amended  by  an 
act  approved  September  twenty- sixth,  eighteen  hundred 
and  eighty-eight,  is  hereby  increased  to  one  hundred  and 
ten.  Act  of  November  2, 1893  (28  Stat.  L.,  7). 
Detail  of  re-  963.  That  nothing  in  the  Act  entitled '  'An  Act  to  increase 

^lieges  noUim0  the  number  of  officers  of  the  Army  to  be  detailed  to  colleges," 
approved  November  third,  eighteen  hundred  and  ninety- 
three,  shall  be  so  construed  as  to  prevent,  limit,  or  restrict 
the  detail  of  retired  officers  of  the  Army  at  institutions  of 
learning  under  the  provisions  of  section  twelve  hundred 
and  sixty,  Revised  Statutes,  and  the  Act  making  appropri- 
ations for  the  support  of  the  Army,  and  so  forth,  approved 
May  fourth,  eighteen  hundred  and  eighty,  nor  to  forbid 

n  Isc8eie  tc°f  °rd  *^e  issue  of  ordnance  and  ordnance  stores,  as  provided  in  the 
Act  approved  September  twenty-sixth,  eighteen  hundred 
and  eighty-eight,  amending  section  twelve  hundred  and 
Aug. 6, 1894,  v.  twenty-five,  Revised  Statutes,  to  the  institutions  at  which 
retired  officers  may  be  so  detailed;  and  said  Act  of  Novem- 
ber third,  eighteen  hundred  and  ninety-three,  and  said  Act 
of  May  fourth,  eighteen  hundred  and  eighty,  shall  not  be 

1  The  act  of  November  3, 1893  (28  Stat.  L.,  7),  authorized  officers  on  the  retired  list, 
thereafter  detailed,  on  college  duty,  to  receive  the  full  pay  of  their  grades.    This 
statute  was  repealed  by  the  act  of  August  6, 1894  (28  Stat.  L.,  233).     The  act  of  May 
4, 1880  (21  Stat.  L  ,  509)  authorizes  retired  officers,  detailed  at  colleges,  to  receive  the 
difference  between  the  active  and  retired  pay  of  their  grades  from  the  institution  to 
which  they  are  detailed. 

2  This  provision  repealed  as  to  retired  officers  detailed  since  August  6,  1894,  the 
date  of  the  repealing  statute.    The  effect  of  this  statute  is  to  give  full  pay  to  all 
retired  officers  detailed  for  college  duty  between  November  3,  1893,  and  August  6, 
1894.    Those  detailed  under  other  statutes  are  not  entitled  to  such  increase. 


THE   MILITARY   LAWS    OF   THE   UNITED   STATES. 


343 


construed  to  allow  the  full  pay  of  their  rank  to  retired    Pay  not 

*     "   <  creased. 

officers  detailed  under  said  section  twelve  hundred  and 
sixty,  Revised  Statutes,  and  said  Act  of  May  fourth,  eight- 
een hundred  and  eighty.  Act  of  August  6',  1894  (28  Stat. 
L.,  235}. 

RETIREMENT   OF   OFFICERS.1 


Pa*. 

964.  Retirement  upon  officer's  own 

application  after  forty 
years'  service;  same  on  ap- 
plication, at  discretion  of 
President,  after  thirty 
years'  service. 

965.  The    same;    compulsory    re- 

tirement at  age  64. 

966.  Unlimited  retired  list. 

967.  Retirement  at  discretion  of 

President  after  forty- five 
years'  service. 

968.  Retirement  for  disability. 

969.  Composition       of       retiring 

board. 

970.  Oath  of  members. 

971.  Powers  and  duties. 

972.  Findings. 


Par. 

973.  Revision  by  the  President. 

974.  Disability  incident  to  service. 

975.  Disability    not    incident    to 

service. 

976.  Officers  entitled  to  a  hearing. 

977.  To  be  retired  on  actual  rank. 

978.  Officers    retired    on     actual 

rank. 

979.  Status  of  retired  officers. 

980.  Vacancies   caused  by  retire- 

ment. 

981.  The  limited  retired  list. 

982.  Transfers  from  limited  to  un- 

limited list. 

983.  Service  for  longevity  andTe- 

tirement. 

984.  Pay  of  retired  officers. 

985.  Rights  and  liabilities. 


964.  When  an  officer  has  served  forty  consecutive  years  Retirement 
as  a  commissioned  officer,  he  shall,  if  he  makes  application  own°  application 
therefor  to  the  President,  be  retired  from  active  service  and  service. 


placed  upon  the  retired  list.    When  an  officer  has 

thirty  years  in  the  service,  he  may,  upon  his  own  applica- 

tion,  in  the  discretion  of  the  President,  be  so  retired,  aud16^c.i248,R.s. 

placed  on  the  retired  list.2 

965.  That  on  and  after  the  passage  of  this  act  when  an    The    same; 
officer  has  served  forty  years  either  as  an  officer  or  soldier  tfremenTat  a|e 
in  the  regular  or  volunteer  service,  or  both,  he  shall,  if  he64Jtme30  (1882)V. 
make  application  therefor  to  the  President,  be  retired  from  22'  P-  117- 
active  service  and  placed  on  the  retired  list,  and,  when  an 
officer  is  sixty  -four  years  of  age,  he  shall  be  retired  from 
active  service  and  placed  on  the  retired  list:  Provided 
further,  That  the  General  of  the  Army,  when  retired,  shall 
be  retired  without  reduction  in  his  current  pay  and  allow- 
ances ;  and  no  act  now  in  force  shall  be  so  construed  as  to 
limit  or  restrict  the  retirement  of  officers  as  herein  provided 
for.3    Act  of  June  30,  1882  (22  Stat.  L.,  117). 

JFor  statutes  regulating  the  pay  of  retired  officers,  see  the  title  "Pay  of  officers" 
in  the  chapter  entitled  THE  PAY  DEPARTMENT.  See,  also,  paragraph  984,  post. 

2  The  act  of  June  17,  1878,  authorizes  service  as  an  officer  of  volunteers  during  the 
War  of  the  Rebellion,  or  as  an  enlisted  man  in  the  armies  of  the  United  States,  regu- 
lar or  volunteer,  to  be  credited  in  the  computation  of  service  for  longevity  pay  or 
retirement. 

3Compare  paragraph  966,  post  ,•  these  statutes  created  the  unlimited  retired  list. 
See,  also,  note  1,  to  paragraph  066,  post. 


§44  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

unlimited  re-  966.  That  nothing  contained  in  the  act  making  appro- 
MM.  8,  issa,  v.  priations  for  the  support  of  the  Army  for  the  fiscal  year 
ending  June  thirtieth,  eighteen  hundred  and  eighty  three, 
approved  June  thirtieth,  eighteen  hundred  and  eighty-two, 
shall  be  so  construed  as  to  prevent,  limit,  or  restrict  retire- 
ments from  active  service  in  the  Army,  as  authorized  by 
law  in  force  at  the  date  of  the  approval  of  said  act,  retire 
ments  under  the  provisions  of  said  act  of  June  thirtieth, 
eighteen  hundred  and  eighty-two,  being  in  addition  to  those 
theretofore  authorized  by  law.1  Act  of  March  5,  1883  (22 
Stat.  L.,  457). 
Eetirement  at  967.  When  any  officer  has  served  forty-five  years  as  a 

discretion   of  .  ITT  -u 

President  after  commissioned  officer,  or  is  sixty-two  years  old,  he  may  be 
oratTheaglfofel'.  retired  from  active  service  at  the  discretion  of  the  Presi- 

July  17, 1862,  c.  /Ipnt ,  2 
200,  8.12,  v.  12,  p.  U<  I1U 
596.     Sec.  1244,  B.S. 

Retirement  for  968.  When  any  officer  has  become  incapable  of  perform- 
^Aug.1^  'i86i,  c.  ing  the  duties  of  his  office,  he  shall  be  either  retired  from 
4j98. 16  v>  12)  p<  active  service,  or  wholly  retired  from  the  service,  by  the 

sec.  1246,  B.S.  p^gident^  as  hereinafter  provided. 

RETIRING   BOARDS. 

composition  of  969.  The  Secretary  of  War,  under  the  direction  of  the 
reAugg3,bi86id'c.  President,  shall,  from  time  to  time,  assemble  an  Army  retir- 
2898' J?' v' 12'  P*  *n£  board,  consisting  of  not  more  than  nine  nor  less  than 


289. 

sec.  1246, B.S.  five  officerS)  two-fifths  of  whom  shall  be  selected  from  the 
Medical  Corps.  The  board,  excepting  the  officers  selected 
from  the  Medical. Corps,  shall  be  composed,  as  far  as  may 
be,  of  seniors  in  rank  to  the  officer  whose  disability  is 
inquired  of. 

Oath  of  mem-  970.  The  members  of  said  board  shall  be  sworn  in  every 
bers-  case  to  discharge  their  duties  honestly  and  impartially. 

42^U17,3 'v!812,'  p!  290'    Sec' *  247 ,  R.  S. 

Powers  "and     971.  A  retiring  board  may  inquire  into  and  determine 
dlAug.3,  iset,  c.  the  facts  touching  the  nature  and  occasion  of  the  disability 
42^.8. 17' v' 12' p<  of  any  officer  who  appears  to  be  incapable  of  performing 
sec.  1248,  R.s.tlie  Duties  of  his  office,  and  shall  have  such  powers  of  a 
court-martial  and  of  a  court  of  inquiry  as  may  be  neces- 
sary for  that  purpose.3 

Findings.  972.  When  the  board  finds  an  officer  incapacitated  for 

42A8UT73V18i621'  p!  active  service,  it  shall  also  find  and  report  the  cause  which, 

290.  ' 
Sec.  1249,  B.  S.     i  Compare  paragraph  965,  ante,-  these  statutes  created  the  unlimited  retired  list. 

2  The  act  of  June  17,  1878,  authorizes  service  as  an  officer  of  volunteers  during  the 
War  of  the  Rebellion,  or  as  an  enlisted  man  in  the  armies  of  the  United  States,  regular 
or  volunteer,  to  be  credited  in  the  computation  of  service  for  longevity  pay  or  retire- 
ment.   See  paragraph  983,  post. 

3  This  provision  does  not  authorize  a  retiring  board  to  entertain  a  charge  of  a  mili- 
tary offense,  as  such,  or  to  try  an  officer.    Dig.  J.  A.  G.,  464,  par.  1.     The  investigation 
of  a  retiring  board  is  not  affected  by  any  limitation  aa  to  time,  as  is  that  of  a  court- 
martial.    Such  a  board  may  therefore  inquire  into  the  matter  of  a  disability,  however 
long  since  it  may  have  originated.    Ibid.,  664,  par.  2. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  345 

in  its  judgment,  has  produced  his  incapacity,  and  whether 
such  cause  is  an  incident  of  service.1 

973.  The  proceedings  and  decision  of  the  board  shall  bethj|^8.ion  by 
transmitted  to  the  Secretary  of  War,  and  shall  be  laid  by  Aug.  3,  isei,  c. 
him  before  the  President  for  his  approval  or  disapproval  29o.8'  '  v'  '  p' 

.       ,,  Sec.l250,R.S. 

and  orders  in  the  case. 


974.  When  a  retiring  board  finds  that  an  officer  is  inca-  , 

dent  to  service. 

pacitated  for  active  service,  and  that  his  incapacity  is  the^ug.^,  isei.c. 
result  of  an  incident  of  service,  and    such  decision  is29o.8' 
approved  by  the  President,  said  officer  shall  be  retired 
from  active  service  and  placed  on  the  list  of  retired  officers. 

975.  When  the  board  finds  that  an  officer  is  incapacitated  .  Disability  not 

incident  to  serv- 

for  active  service,  and  that  his  incapacity  is  not  the  result  ice^u 

of  any  incident  of  service,  and  its  decision  is  approved  by  *2,  s.iV.V.  12,'  P! 

the  President,3  the  officer  shall  be  retired  from  active  ~serv-    s'ec.i252,R.s. 

ice,  or  wholly  retired  from  the  service,  as  the  President 

may  determine.    The  names  of  officers  wholly  retired  from 

the  service  shall  be  omitted  from  the  Army  Register.- 

976.  Except  in  cases  where  an  officer  may  be  retired  bv    officers  enti- 

,  .  ,.       ,.  ,  J_  tied  to  a  hearing. 

the  President  upon  his  own  application,  or  by  reason  of   Aug.3,  isei,  c. 

his  having  served  forty-five  years,  or  of  his  being  sixty-  29o.8' 

two  years  old,  no  officer  shall  be  retired3  from  active  serv- 

ice, nor  shall    an  officer,  in  any  case,  be  wholly  retired 

from  the  service,  without  a  full  and  fair  hearing  before  an 

Army  retiring  board,  if,  upon  due  summons,  he  demands  it.4 

977.  Officers  hereafter  retired  from  active  service  shall  onTa°ctuti  rlnked 
be  retired  upon  the  actual  rank  held  by  them  at  the  date  v  *[unpe  3™'.  **™> 
of  retirement.  3-  1875'  v-  18'  P-  512-    Se«-  i2^'»  R^-' 

978.  That  all  officers  of  the  Army  who  have  been  here-    officers  retired 

*  on  actual  tank. 

tofore  retired  by  reason  of  disability  arising  from  wounds    sec.  2  Mar.  3, 

lotfu,  V.  lo,  p.  512; 

received  in  action  shall  be  considered  as  retired  upon  the  ises,  c.  38,  s.  2,  v. 

15,  p.  58. 

1  Held  that  the  cause  of  incapacity  intended  in  this  section  was  a  physical  cause; 
that  moral  obliquity  was  not  had  in  view  ;  and  that  the  matter  of  the  financial  integ- 
rity of  the  officer  was  beyond  the  jurisdiction  of  the  board.  Dig.  J.  A.  G.,  667,  par. 
15.  The  incapacity  may  result  from  habitual  drunkenness.  Ibid.,  665,  par.  5. 

2The  finding  of  a  retiring  board,  approved  by  the  President,  is  conclusive  as  to 
the  facts.  The  board  finds  the  facts  and  the  President  approves  or  disapproves  the 


finding,  but  the  law  does  not  empower  him  to  modify  the  finding  or  to  substitute  a 
different  one.  There  is  here  a  judicial  power,  vested  in  the  two,  and  not  in  the 
President  acting  singly,  and  when  the  power  has  once  been  fully  exercised  it  is 
exhausted  as  to  the  case.  Dig.  J.  A.  G.,  668,  par.  18;  TJ.  S.  v.  Burchard,  125  U.  S.,  179; 
U.  S.  v.  Miller,  19  C.  Cls.  K.,  338. 

3To  be  "wholly  retired,"  in  accordance  with  the  terms  of  this  section,  is  to  be  put 
out  of  the  Army  and  out  of  office.  An  officer  wholly  retired  becomes  a  civilian,  and 
can  be  readmitted  to  the  service  only  by  a  new  appointment.  Dig.  J.  A.  G.,  666,  par. 
9;  Millers  U.  S.,  19  C.  Cls.  R.,  338. 

4  The  provision  of  this  section  that  an  officer  shall  not  be  "  wholly  retired  from  the 
service  without  a  full  and  fair  hearing  before  an  Army  retiring  board  if,  upon  due 
summons,  he  demands  it,"  may  be  said  to  entitle  him"  to  appear  before  the  board 
(with  counsel,  if  desired),  and  to  introduce  testimony  of  his  own,  to  cross-examine 
the  witnesses  examined  by  the  board,  including  the  medical  members  of  the  board 
who  may  have  taken  part  in  the  medical  examination,  and  have  stated,  or  reported 
to  the  board  the  result  of  the  same.  If  the  officer  does  not  elect  to  appear  before 
the  board  when  summoned,  he  waives  the  right  to  a  hearing,  and  can  not  properly 
take  exception  to  a  conclusion  arrived  at  in  his  absence.  Dig.  J.  A.  G.,  665,  par.  7. 
When  the  President  approves  and  acts  upon  the  report  of  a  retiring  board  he  thereby 
determines  that  the  officer  has  had  a  full  and  fair  hearing.  Miller  v.  U.  S.,  19  C. 
Cls.  K.,  338.  But  see  16  Att.  Gen.  Opin.,  20. 


346  THE    MILITARY    LAWS   OF   THE    UNITED    STATES. 

actual  rank  held  by  them,  whether  iu  the  regular  or  volunteer 
service,  at  the  time  when  such  wound  was  received,  and  shall 
be  borne  on  the  retired  list  and  receive  pay  hereafter  accord- 
ingly; and  this  section  shall  be  taken  and  construed  to  in- 
clude those  now  borne  on  the  retired  list  placed  upon  it  on 
account  of  wounds  received  in  action  :  Provided,  That  no 
part  of  the  foregoing  act  shall  apply  to  those  officers  who 
had  been  in  service  as  commissioned  officers  twenty-five 
years  at  the  date  of  their  retirement;  nor  to  those  retired 
officers  who  had  lost  an  arm  or  leg,  or  has  an  arm  or  leg 
permanently  disabled  by  reason  of  resection,  on  account  of 
wounds,  or  both  eyes  by  reason  of  wounds  received  in 
battle;  and  every  such  officer  now  borne  on  the  retired  list 
shall  be  continued  thereon  notwithstanding  the  provisions 
of  section  two  chapter  thirty-eight  act  of  March  thirty, 
eighteen  hundred  and  sixty-eight;  and  be  it  also  provided, 
that  no  retired  officer  shall  be  affected  by  this  act,  who  has 
been  retired  or  may  hereafter  be  retired  on  the  rank  held 
by  him  at  the  time  of  his  retirement.  Sec.  5,  act  of  March 
3,  1815  (18  Stat.  L.,  512). 
..st.at"£  of  re-  979.  Officers  retired  from  active  service  shall  be  with- 

tired  othcers. 

42^16  V?L  C'  C^rawn  fr°m  command  and  from  the  line  of  promotion. 

289?  JulylV,  1862,'  c.  200,  s.  12,  v.  ±2,  p.  596.    Sec.  1255,  R.  S. 


caLtd  a  n  °  *  e  8     ®^'  ^nen  any  °fficer  in  *ne  line  °f  promotion  is  retired 
tirement.  y    re  from  active  service,  the  next  officer  mrank  shall  bepromoted 
42,  8usi6,  V.  12,'  p!  to  his  place,  according  to  the  established  rules  of  the  service  ; 
s'ec.i257,R.s.  and  the  same  rule  of  promotion  shall  be  applied,  succes- 
sively, to  the  vacancies  consequent  upon  such  retirement. 
The  limited  re      981.  The  whole  number  of  officers  of  the  Army  on  the 
Aug.  3,  i86i,  c.  retired  list  shall  not  at  any  time  exceed  three  hundred  and 
,'  fifty,  and  any  less  number  to  be  allowed  thereon  maybe 
'  fixed  D    the  ^^dent  in  uis  discretion.1 


v.26,p703.    Sec    1258,  R.S. 

982>  Tliat  waen  officers  who  have  been  placed  on  the 


itev  U2o  150  ^mJted  retired  list  as  established  by  section  seven,  chapter 
amended.^  ^  '  two  hundred  and  sixty-three,  page  one  hundred  and  fifty, 
v.  26,  p.  763.  'volume  twenty,  United  States  Statutes  at  Large,  shall 
have  attained  the  age  of  sixty-four  years  they  shall  be 
transferred  from  said  limited  retired  list  to  the  unlimited 
list  of  officers  retired  by  operation  of  law  because  of  hav- 
ing attained  said  age  of  sixty-four  years.  And  the  limited 
retired  list  shall  hereafter  consist  of  three  hundred  and 
fifty  instead  of  four  hundred,  as  now  fixed  by  law:  Pro- 
vided, That  officers  who  have  been  placed  on  the  retired 
list  by  special  authority  of  Congress  shall  not  form  part  of 

1  Section  7  of  the  act  of  June  17,  1878  (20  Stat.  L  ,  144),  fixed  the  strength  of  the 
limited  retired  list  at  400.  The  nuinher  on  the  limited  retired  list  was  fixed  at  350 
by  the  act  of  February  16,  1891  (26  Stat.  L.,  703). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  347 

the  limited  retired  list  established  by  this  act.    Act  of 
February  16, 1891  (26  Stat.  L.,  763). 

983.  That  on  and  after  the  passage  of  this  act,  all  officers  longevity  and?er 
of  the  Army  of  the  United  States  who  have  served  as  offi-^g6™6^^^ 
cers  in  the  volunteer  forces  during  the  war  of  the  rebel- 1878>  v-  *°-  P-  15°- 
lion,  or  as  enlisted  men  in  the  armies  of  the  United  States, 

regular  or  volunteer,  shall  be,  and  are  hereby,  credited 
with  the  full  time  they  may  have  served  as  such  officers 
and  as  such  enlisted  men  in  computing  their  service  for 
longevity  pay  and  retirement.  And  the  retired  list  shall  Retl 
hereafter  be  limited  to  four  hundred  in  lieu  of  the  number 
now  fixed  by  law.  Sec.  7,  act  of  June  17,  1878  (20  Stat.  L., 
150). 

PAY   OF   RETIRED   OFFICERS. 

984.  Officers  retired  from  active  service  shall  receive  of^J8of  retired 
seventy-five  per  centum  of  the  pay  of  the  rank  upon  which    sec.  1274,  it.  s. 
they  were  retired.1 

MISCELLANEOUS   PROVISIONS. 

985.  Officers  retired  from  active  service  shall  be  entitled  bi™fe^8  and  lia' 
to  wear  the  uniform  of  the  rank  on  which  they  may  be  42ABU%j3v1?2l  p' 
retired.    They  shall  continue  to  be  borne  on  the  ^rmy 
Eegister,  and  shall  be  subject  to  the  rules  and  articles  of 

war,  and  to  trial  by  general  court-martial  for  any  breach 
thereof.2 

986.  Retired  officers  of  the  Army  may  be  assigned  to 

duty  at  the  Soldiers'  Home,  upon  a  selection  by  the  com- Home.  ^  ^  ^ 
missioners  of  that  institution,  approved  by  the  Secretary  ^rYi STO,^ ! 
of  War:  and  a  retired  officer  shall  not  be  assignable  to  any  32.  v.  i6.'p .372'; 

-T  t*l>.  J7,  Io77,    C. 

other  duty:  Provided,  That  they  receive  from  the  Govern-  69  v.io.p  243. 

S6C«  1  !?»>  tK  ft*  &• 

ment  only  the  pay  and  emoluments  allowed  by  law  to 
retired  officers.3 

1  The  pay  of  retired  officers  is  a  matter  within  the  control  of  Congress,  and  so  is 
their  rank .    Wood  v.  U.  S.,  15  C.  Cls  R.,  151,  and  107  U.  S.,  414. 

2  A  retired  officer  is  subject  to  trial  by  court-martial,  and  a  court-martial  has  juris- 
diction of  offenses  committed  after  the  officer  was  retired.    Runklev.  U.  S.,  19  C.  Cls. 
R.,396;  Dig.J.A.  G.,6G6,  par.  11. 

3  A  retired  Army  officer  is  not  prohibited  by  law  from  holding  office  in  an  Executive 
Department,  nor  from  receiving  the  salary  thereof  in  addition  to  his  retired  pay. 
Collins  v.  U.  S.,  15  C.  Cls.  R.,  22;  Meigs  v.  U.  S.,  19  C.  Ct.,  497.     A  retired  officer  may 
be  employed  by  the  War  Department.    Yates  v.  U.  S.,  25  C.  Cls.  R.,  296.     Retired  offi- 
cers, as  such,  do  not  hold  public  office.     They  are  in  fact  pensioners.    The  position 
and  pay  given  them  constitute  a  form  of  pension.    They  exercise  no  functions  and 
receive  no  emoluments  of  office,  but  are  pensioned  for  past  faithful  services  or  disa- 
bilities contracted  in  the  line  of  duty.    Their  condition  and  public  office  have  no 
characteristics  in  common.    Dig.  J.  A.  G.,  668,  par.  19.     See  in  this  connection  the 
act  of  July  31,1894  (28  Stat.  L.,  205),  which  permits  retired  officers  to  hold  office  to 
which  they  have  been  elected  by  the  people  or  appointed  by  the  President  with  the 
advice  and  consent  of  the  Senate.     See  also  section  7  of  the  act  of  June  3,  1896  (29 
Stat.  L.,  235),  which  contains  the  requirement  "that  section  2  of  the  act  of  July  31, 
1894  (28  Stat.  L.,  205),  shall  not  be  so  construed  so  to  prevent  the  employment  of  any 
retired  officer  of  the  Army  or  Navy  to  do  work  under  the  direction  of  the  Chief  of 
Engineers  of  the  United  States  Army  in  connection  with  the  improvement  of  rivers     ' 
and  harbors  of  the  United  States,  or  the  payment  by  the  proper  officer  of  the  Treas- 
ury of  any  amounts  agreed  upon  as  compensation  for  such  employment."    This  pro- 
vision operates  to  exempt  from  the  terms  of  the  act  of  July  31,  1894  (sec.  1763,  Rev. 
Stat.),  all  retired  officers  of  the  Army  or  Navy  who  may  be  employed  by  the  Engi- 
neer Department  upon  works  of  river  and  harbor  improvement. 


348 


THE   MILITARY    LAWS   OF   THE    UNITED    STATES. 


987.  No  person  belonging  to  the  Army  or  Navy  shall  be 
to  or  hold  any  civil  office  or  appointment  in  any 


Ineligible  for 
civil  office  in  any 

TMrar°3y'i883  v 

22,  p.  567.'  Territory,  except  officers  of  the  Army  on  the  retired  list. 

Sec .  I860;  It.  S. 


MISCELLANEOUS  PROVISIONS  RESPECTING  COMMISSIONED 
OFFICERS. 


Par. 

992.  Enlisted  men  not  to  be  used 

as  servants. 

993.  Effects  of  deceased  officers. 

994.  Officers  charged  with  effects 

to  account  for  same. 


Par. 

988.  Duties  on  which  officers  are 

not  to  be  employed. 

989.  Accepting    or  holding    civil 

office. 

990.  Army  officers  to   be  detailed 

as  Indian  agents. 

991.  Supernumerary  officers  may, 

on  their  own   request,  be 
discharged  with  pay,  etc. 

UP°*     988.  No  officer  of  the  Army  shall  be  employed  on  civil 

winch  officers  of  J 

the  Army  are  not  works  or  internal  improvements,  or  be  allowed  to  engage 

to  be  employed. 

Feb.  27, 1877,  v.  m  the  service  of  any  incorporated  company,  or  be  employed 
sec.i224,R.s.  as  acting  paymaster  or  disbursing- agent  of  the  Indian 
Department,  if  such  extra  employment  requires  that  he 
shall  be  separated  from  his  company,  regiment,  or  corps, 
or  if  it  shall  otherwise  interfere  with  the  performance  of 
the  military  duties  proper.  Act  of  February  27, 1877  (19 
Stat.  L.,  243}. 

hofdtog'cfvli  o°fr     989>  No  officer  of  tlie  Army  on  the  active  list  shall  hold 

ficjui  15  i87o  c  auy  C*V^  °ffice?  whether  by  election  or  appointment,  and 

294,  s.18,  v.  16,' p.  every  such  officer  who  accepts  or  exercises  the  functions 

sec.  1222,  B.S.  of  a  civil  office  shall  thereby  cease  to  be  an  officer  of  the 

Army,  and  his  commission  shall  be  thereby  vacated. 
Army  officers     990.  That  from  and  after  the  passage  of  this  act  the 

to  be  detailed  as 

Indian  agents.    President  shall  detail  officers  of  the  United  States  Armv 

July  13, 1892,  v.  J 

27, p.  120.  to  act  as  Indian  agents  at  all  agencies  where  vacancies 

from  any  cause  may  hereafter  occur,  who,  while  acting  as 
such  agents,  shall  be  under  the  orders  and  direction  of 
the  Secretary  of  the  Interior,  except  at  agencies  where, 
in  the  opinion  of  the  President,  the  public  service  would 
be  better  promoted  by  the  appointment  of  a  civilian.1  Act 
of  July  13,  1892  (27  Stat.  L.,  120}. 

aryTfficers^a^      "*•  ^na*  anv  officer  who  is  supernumerary  to  the  per- 

°n  their  own  re'- manent  organization  of  the  Army  as  provided  bylaw  may, 

charged  with  at  his  own  request,  be  honorably  discharged  from  the 

June  so,  i882,  v.  Army,  and  shall  thereupon  receive  one  year's  pay  for  each 

five  years  of  his  service,  but  no  officer  shall  receive  more 


1  See,  for  other  provisions  of  law  respecting  the  detail  of  officers  as  Indian  agents, 
the  chapters  entitled  THE  INDIANS;  INDIAN  AGENTS ;  THK  INDIAN  COUNTRY. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      349 

than  three  year's  pay  iu  all.    Act  of  June  30,  1882  (22  Stat. 
£.,  118). 

992.  No  officer  shall  use  an  enlisted  man  as  a  servant 
in  any  case  whatever. 


c. 

294,  8.  14,  v.  16,  p. 
319. 


W*.*«     1  >>*>»>     1>    G 

DECEASED   OFFICERS. 


993.  In  case  of  the  death  of  any  officer,  the  major  of  his 
regiment,  or  the  officer  doing  the  major's  duty,  or  the  sec-  126  Art-  War- 
ond  officer  in  command  at  any  post  or  garrison,  as  the  case 
may  be,  shall  immediately  secure  all  his  effects  then  in 
camp  or  quarters,  and  shall  make,  and  transmit  to  the  office 
of  the  Department  of  War,  an  inventory  thereof.1  One 
hundred  and  twenty-fifth  Article  of  War. 

1  DECEASED  OFFICERS. 

The  death  of  an  officer,  with  place,  cause,  day,  and  hour,  -will  be  reported  without 
delay  by  his  immediate  commander  direct  to  the  Adjutant-General  of  the  Army.  A 
duplicate  of  this  report  will  be  forwarded  to  department  headquarters.  When  the 
death  occurs  away  from  the  officer's  station,  in  hospital  or  on  leave,  the  medical 
officer,  if  one  be  present,  or  any  officer  having  cognizance  of  the  fact,  will  make  the 
report.  (Par.  81.  A.  K.,  1895.) 

Inventories  of  the  effects  of  deceased  officers,  as  required  by  the  One  hundred  and 
twenty-fifth  Article  of  War,  will  be  transmitted  to  the  Adjutant-General  of  the 
Army.  If  legal  representatives  take  possession  of  the  effects,  the  fact  will  be  stated 
in  the  inventory.  (Par.  82,  ibid.) 

If  there  be  no  legal  representatives  present  to  receive  the  effects,  a  list  of  them 
wifl  be  sent  to  the  nearest  relative  of  the  deceased.  At  the  end  of  two  months,  if 
not  called  for,  they  will  be  sold  atauctionand  accounted  for  as  in  the  case  of  deceased 
soldiers,  except  that  swords,  watches,  trinkets,  and  similar  articles  will  be  labeled 
with  the  name  rank,  regiment,  and  date  of  death  of  the  owner,  and  sent  through  the 
Adjutant-General  to  the  Auditor  forthe  War  Department  forthe  benefitof  theneirs. 
(Par  83.  ibid.) 

Where  an  officer  dies  who  is  responsible  for  public  property  or  funds,  their  dispo- 
sition is  provided  for  by  the  following  provisions  of  Army  Tlegulations  :  "On  the 
death  of  an  officer  in  charge  of  public  property  or  funds,  his  commanding  officer 
will  appoint  a  board  of  survey,  which  will  inventory  the  same,  and  make  the  cus- 
tomary returns  therefor,  stating  accurately  amounts  and  condition.  These  the  com- 
manding officer  will  forward  to  the  chiefs  of  the  bureaus  to  which  the  property  or 
funds  pertain,  and  he  will  designate  an  officer  to  take  charge  of  such  property  or 
funds  until  orders  in  the  case  are  received  from  the  proper  authority/'  (Par.  84, 
ibid.) 

FUNERAL  EXPENSES. 

The  disposition  of  the  remains  of  deceased  officers  and  the  payment  of  funeral 
expenses  are  provided  for  in  the  following  regulation:  "The  remains  of  officers 
killed  in  action,  or  who  die  when  on  duty  in  the  field  or  at  military  posts,  or  when 
traveling  under  orders,  will  be  decently  inclosed  in  coffins,  and  unless  claimed  by 
relatives  or  friends,  will  be  transported  by  the  Quartermaster's  Department  to  the 
nearest  military  post  or  national  cemetery  for  burial.  The  expense  of  transporting 
the  remains  is  payable  from  the  appropriation  for  Army  transportation  ;  other  ex- 
penses of  burial  are  limited  to  $75.  If  buried  at  the  place  of  death,  the  fact  will  be 
reported  to  the  Adjutant-General  of  the  Army."  (Par.  85,  ibid.) 

The  annual  acts  of  appropriation  since  that  of  June  12,  1858  (11  Stat.  L.,  333),  have 
contained  a  provision  for  the  expenses  of  interment  "of  officers  killed  in  action  or 
who  die  when  on  duty  in  the  field  or  at  military  posts,  or  when  on  the  frontiers,  or 
when  traveling  under  orders."  (Act  of  February  12,  1895,  128  Stat.  L.,  659.) 

There  is  no  authority  of  law  for  the  payment  of  mileage  on  account  of  the  trans- 
portation of  the  remains  of  a  deceased  officer  of  the  Army.  Such  payment  would 
be  illegal,  and  could  not  properly  be  allowed  by  the  accounting  officers.  Under 
section  2,  act  of  July  24,  1894  (19  Stat.  L.,  100),  mileage  ceased  to  accrue  at  the  point 
where,  and  the  time  when,  by  reason,  of  death,  an  officer  ceases  to  be  an  officer  of 
the  Army.  There  is  nothing  in  section  1  of  the  act  of  September  19,  1890  (26  Stat. 
L.,  456),  which  is  in  conflict  with  this  view.  (3  Compt.  Dec.,  209.) 

Held,  that  the  regulation  allowance  for  the  expenses  of  the  interment  of  an  officer, 
as  fixed  by  paragraph  85,  Army  Regulations,  1895,  was  not  payable  in  the  case  of  an 
officer  who,  at  the  time  of  his  death,  was  on  sick  leave,  this  being  not  one.  of  the 
cases  specified  in  the  Army  appropriation  acts  in  which  such  allowance  is  author- 
ized to  be  paid.  Dig.  J.  A.  G.,  578,  par.  68.  Similarly  held  in  the  case  of  an  officer 


officer  dying  at  a  military  post  unless  he  was  on  duty  there  at  the  time  of  his  death 


350  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

^SeffeSogaecd  994t  Officers  charged  with  the  care  of  the  effects  of 
c°i'27  Art8>va6'  Deceased  officers  or  soldiers  shall  account  for  and  deliver 
the  same,  or  the  proceeds  thereof,  to  the  legal  representa- 
tives of  such  deceased  officers  or  soldiers.  And  no  officer 
so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding 
officer  all  the  effects  of  such  deceased  officers  or  soldiers 
not  so  accounted  for  and  delivered.  One  hundred  and 
twenty-seventh  Article  of  War. 

and  therefore  could  not  be  legally  allowed  in  a  case  of  an  officer  who  deceased  at  a 
post  where  he  was  staying  while  on  sick  leave  of  absence  from  his  station  in  another 
military  department.  Ibid.,  par.  69. 

Held,  that  the  fact  that  an  officer  had  been  interred  at  the  post  where  he  died  did 
.  not  preclude  the  Secretary  of  War  from  having  authorized  his  permanent  interment 
elsewhere,  provided  the  entire  expenses  of  burial  did  not  exceed  the  maximum 
amount  of  $75  allowed  for  such  purposes  by  paragraph  85,  Army  Regulations  of  1895. 
(Ibid.,  par.  69.) 

Paymasters,  in  making  prepayments  of  salary  to  officers  of  the  Army,  are  liable 
for  any  portion  unearned  by  the  officer  on  account  of  death,  or  otherwise;  also  for 
any  final  indebtedness  of  said  officer  to  the  Government  to  the  extent  of  said  pre- 
payment. (3  Compt.  Dec.,  10.) 

Balances  due  from  the  United  States  to  deceased  persons  are  payable  at  the  Treas- 
ury, and  not  by  disbursing  officers.  (Second  Compt.,  sec.  676;  Scott  Dig.,  260.) 


CHLAJPTER 


BREVETS— MEDALS   OF   HONOR-CERTIFICATES 
OF  MEEIT— FOREIGN  DECORATIONS. 


Par. 

995.  Brevet  commissions. 

996.  Dates  of  brevet  commissions- 

997.  Brevets  authorized  for  gal- 

lantry    in     Indian    cam* 
paigns. 

998.  To  date  from  passage  of  this 

act. 

999.  Brevet  rank  to  be  strictly 

honorary. 

1000.  Assignments  to  duty,  etc. ; 

when  made. 

1001.  Effect  of  assignment. 

1002.  Uniform  of  actual  rank  to 

be  worn. 


Par. 

1003.  To  be  addressed  by  title  of 

actual  rank. 

1004.  Officers  may  wear  uniform 

of  highest  volunteer  rank. 

1005.  Foreign  decorations  not  to 

be  worn. 

1006.  Decorations,  etc. ;  how  ten- 

dered. 

1007.  Medals  of  honor. 

1008.  Certificate  of  merit. 

1009.  Army  corps  badges. 

1010.  Military  society  badges. 

1011.  Badge  of  Eegular  Army  and 

Navy  Union. 


BREVETS. 


995.  The  President,  by  and  with  the  advice  and  consent 
of  the  Senate,  may,  in  time  of  war,  confer  commissions  by 
brevet  upon  commissioned  officers  of  the  Army,  for  dis- 
tinguished  conduct  and  public  service  in  presence  of  the  Mar-  *•  * 

15,  p.  281* 

enemy. 

996.  Brevet  commissions  shall  bear  date  from  the  partic- 
ular  action  or  service  for  which  the  officers  were  brevetted. 

997.  That  the  President  of  the  United  States  be,  and  he  J 

is  hereby,  authorized  and  empowered,  at  his  discretion,  to  ry«     dian  cam 
nominate,  and  by  and  with  the  advice  and  consent  of 
Senate,  to  appoint  to  brevet  rank  all  officers  of  the  United 
States  Army,  now  on  the  active  or  retired  list,  who  by  their 
department  commander,  and  with  the  concurrence  of  the 
commanding  general  of  the  Army,  have  been  or  may  be 
recommended  for  gallant  service  in  action  against  hostile 
Indians  since  January  first,  eighteen  hundred  and  sixty- 
seven.    Sec.  1,  act  of  February  27,  1890  (26  Stat.  L.,p.l3). 

351 


MjT 

,  S.6, 

Sec.  1210,  R.S. 


352  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

TO  date  from     993.  That  such  brevet  commissions  as  may  be  issued 

passage  of    this 

act-       .  .        under  the  provisions  of  this  act  shall  bear  date  only  from 
Date  of  heroic  the  passage  of  this  act :  Provided,  however,  that  the  date  of 
the  particular  heroic  act  for  which  the  officer  is  promoted 
shall  appear  in  his  commission.     Sec.  2,  ibid. 

999<  Tnat  brevet  rank  shall  be  considered  strictly  hon- 
3  ibid  orarv7  an(l  shall  confer  no  privilege  of  precedence  or  com- 
mand not  already  provided  for  in  the  statutes  which 
embody  the  rules  and  articles  governing  the  Army  of  the 
United  States.  Sec. «?,  ibid. 

dutvfefc.7  wUn     1000.  That  officers  of  the  Army  shall  only  be  assigned 
Mar.  3, 1883,  v.  to  duty  or  command  according  to  their  brevet  rank  when 
22,  P.  457.'  actually  engaged  in  hostilities.    Act  of  March  3,  1883  (22 

Stat.  L.j  457). 

1001.  Officers  may  be  assigned  to  duty  or  command  ac- 
427<;  cording  to  their  brevet  rank  by  special  assignment  of  the 
,.res^ei1^?  an(l  brevet  rank  shall  not  entitle  an  officer  to 
sec. mi,  R.S.  precedence  or  command  except  when  so  assigned. 
tuYinirfank  to  Te     1002*  ^°  officer  s^all  be  entitled,  on  account  of  having 
worn.  been  brevetted,  to  wear,  while  on  duty,  any  uniform  other 

294,usyi16!v18i760;p:than  that  of  his  actual  rank. 

319.'     Sec.  1212,  B.s> 

drlssedhforde™     1003.  No  officer  shall  be  addressed  in  orders  or  official 

rankUe°f  actual  communications  by  any  title  other  than  that  of  his  actual 
ibid.  rank> 

UNIFORM  OF   HIGHEST   VOLUNTEER   RANK.  v 

1004-  AU  officers  who  have  served  during  the  rebellion  as 
tefr  ?aikv°lnn"  volunteers  in  the  Army  of  the  United  States,  and  have  been 
299Usly348V18i46' c'  Honorably  mustered  out  of  the  volunteer  service,  shall  be 
33J-  *  entitled  to  bear  the  official  title,  and,  upon  occasions  of 

&CC«  1  —  1. (>}  1C*  S. 

ceremony,  to  wear  the  uniform  of  the  highest  grade  they 
have  held,  by  brevet  or  other  commissions,  in  the  volunteer 
service.  The  highest  volunteer  rank  which  has  been  held 
by  officers  of  the  Regular  Army  shall  be  entered,  with  their 
names  respectively,  upon  the  Army  Register.  But  these 
privileges  shall  not  entitle  any  officer  to  command,  pay,  or 
emoluments. 

FOREIGN   DECORATIONS. 

ratioM^t  tob°e     1°°5-  That  no  decoration,  or  other  thing,  the  acceptance 
wsec.  2,  Jan.  si,  of  which  is  authorized  by  this  act,  and  no  decoration  here 
issi,  v.  21,  p.  so.    tofore  accepted,  or  which  may  hereafter  be  accepted,  by 
consent  of  Congress,  by  any  officer  of  the  United  States, 
from  any  foreign  government,  shall  be  publicly  shown  or 
exposed  upon  the  person  of  the  officer  so  receiving  the 
same.     Sec.  2,  act  of  January  31,  1881  (21  Stat.  L.,  80). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  353 

1006.  That  hereafter  any  present,  decoration,  or  other    Decorations, 

etc.,   how   ten- 
thing,  which  shall  be  conferred  or  presented  by  any  foreign  de™d-3 

government  to  any  officer  of  the  United  States,  civil,  naval, 
or  military,  shall  be  tendered  through  the  Department  of 
State,  and  not  to  the  individual  in  person,  but  such  present, 
decoration,  or  other  thing  shall  not  be  delivered  by  the 
Department  of  State  unless  so  authorized  by  act  of  Con- 
gress. Sec.  3,  ibid. 

MEDALS   OF   HONOR. 

1007.  That  the  President  cause  to  be  struck,  from  the    Medals    of 
dies  recently  prepared  at  the  United  States  Mint  for  that  Os.06',  Mar.  3, 
purpose,  "medals  of  honor"  additional  to  those  authorized  ISJ!'E.' 5? Ma?y2, 
by  the  act  (resolution)  of  July  12, 1862,  and  present  the  same 1896'  v>29'  p>473: 
to  such  officers,  noncommissioned  officers,  and  privates  as 

have  most  distinguished,  or  may  hereafter  most  distin- 
guish themselves  in  action.1  Sec.  6,  act  of  March  3,  1863. 
That  the  Secretary  of  War  be,  and  he  is  hereby,  authorized 
to  issue  to  any  person  to  whom  a  medal  of  honor  has  been 
awarded,  or  may  hereafter  be  awarded,  under  the  provis- 
ions of  the  joint  resolution  approved  July  twelfth,  eighteen 
hundred  and  sixty- two,  and  the  act  approved  March  third, 
eighteen  hundred  and  sixty-three,  a  rosette  or  knot  to  be  Rosette,  or 
worn  in  lieu  of  the  medal,  and  a  ribbon  to  be  worn  with  boa. 
the  medal ;  said  rosette,  or  knot,  and  ribbon  to  be  each  of 
a  pattern  to  be  prescribed  and  established  by  the  President 
of  the  United  States,  and  any  appropriation  that  may  here- 
after be  available  for  the  contingent  expenses  of  the  War 
Department  is  hereby  made  available  for  the  purposes  of 
this  act:  Provided,  That  whenever  a  ribbon  issued  under  New  ribbon. 
the  provisions  of  this  act  shall  have  been  lost,  destroyed? 
or  rendered  unfit  for  use,  without  fault  or  neglect  on  the 
part  of  the  person  to  whom  it  is  issued,  the  Secretary  of 
War  shall  cause  a  new  ribbon  to  be  issued  to  such  person 
without  charge  therefor.  Joint  Resolution  No.  51,  May  2, 
1896  (29  Stat.  L.,  473}. 

CERTIFICATES   OF   MERIT. 

1008.  That  when  any  enlisted  man  of  the  Army  shall  mS?ificate  °f 
have  distinguished  himself  in  the  service  the  President  6iMsari7,'  v8?,' p.' 
may,  at  the  recommendation  of  the  commanding  officer  of  Jf^T^Sfafv^o,1 
the  regiment  or  the  chief  of  the  corps  to  which  such  en- ^g^.1 26Fpb73?  • 
listed  man  belongs,  grant  him  a  certificate  of  merit.    Act$*£$  1892>  v* 
of  March  29,  1892  (27  Stat.  L.,  12}.     A  certificate  of  merit    |eecr't5left'oR'of 

— '  merit. 

iThis  provision  was  not  embraced  in  the  Revised  Statutes.    Medals  of  honor  will     Sec.  1285, R.S. 
be  awarded  by  the  President  to  officers  and  men  who  most  distinguish  themselves 
inaction.     (Par.  177,  A.  R,,  1895.) 

1919 23 


354  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

granted  to  an  enlisted  man  for  distinguished  service  shall 
entitle  him,  from  the  date  of  such  service,  to  additional  pay 
at  the  rate  of  two  dollars  per  month  while  he  is  in  the 
military  service,  although  such  service  may  not  be  contin- 
uous.1 Sec.  2,  act  of  February  9, 1891  (26  Stat.  L.,  737). 

CORPS   BADGES   AND   INSIGNIA   OF   SOCIETIES. 

badge™7  °orp8     1009>  A11  persons  who  have  served  as  officers,  non-com- 
biic  Res  ^o  missioned  officers,  privates,  or  other  enlisted  men,  in  the 
fin  B  Regular  Army,  volunteer  or  militia  forces  of  the  United 

4 )  K.  a. 

States,  during  the  war  of  the  rebellion,  and  have  been  hon- 
orably discharged  from  the  service,  or  still  remain  in  the 
same,  shall  be  entitled  to  wear,  on  occasions  of  ceremony, 
the  distinctive  Army  badge  ordered  for  or  adopted  by  the 
Army  corps  and  division,  respectively,  in  which  they  served, 
s  may     101°-  Tuat  tne  distinctive  badges  adopted  by  military 
vv  Army  societies  of  men  who  served  in  the  armies  and  navies  of  the 
s4't."25,^89o,5v'.  United  States  in  the  war  of  the  Revolution,  the  war  of 
26,  p.  68i.  eighteen  hundred  and  twelve,  the  Mexican  war,  and  the 

war  of  the  rebellion  respectively,  may  be  worn  upon  all 
occasions  of  ceremony  by  officers  and  enlisted  men  of  the 
Army  and  Navy  of  the  United  States,  who  are  members  of 
said  organizations  in  their  own  right.  Joint  resolution  No. 
50,  of  September  25,  1890  (26  Stat.  L.,  681). 

ia?algrem/Rafd     1011-  That  the  distinctive  badge  adopted  by  the  Regular 

nl™Ye  worn.iou  Arni7  and  Navy  Union  of  the  United  States  may  be  worn, 

Ma  ?i  1894  2v  *n  ^ne^r  owu  Tight,  upon  all  public  occasions  of  ceremony 

28,  p.  583.  by  officers  and  enlisted  men  of  the  Army  and  Navy  of  the 

United  States  who  are  members  of  said  organization.    Joint 

resolution  No.  26,  of  May  11,  1894  (28  Stat.  L.,  583). 

1 A  certificate  of  merit  granted  to  an  enlisted  man  for  distinguished  service  entitles 
him,  from  the  date  of  such  service,  to  additional  pay  at  the  rate  of  $2  per  month 
while  in  the  Army,  although  such  service  may  not  be  continuous.  (Par.  1370  A.  R,, 
1881.) 

If  the  soldier  be  discharged  before  the  certificate  is  issued,  it  will  be  retained  in 
the  Adjutant-General's  Oth'ce  until  called  for.  when  proof  of  the  identity  of  the 
applicant  will  be  required.  Should  he  die  before  receiving  his  certificate,  it  will  be 
deposited  in  the  office  of  the  Auditor  for  the  War  Department  for  the  benefit  of  his 
heirs.  (Par.  181,  A.  R.,  1895.) 

Section  1285  of  the  Revised  Statutes  as  amended  by  section  2  of  the  act  of  Febru- 
ary 9,  1891  (26  Stat.  L.,  737),  is  retroactive  and  relates  to  the  date  upon  which  the  dis- 
tinguished service  waa  rendered.  (Mc"Namara  v.  U.  S., 28  C.  Cls.  R.,  416.) 


ENLISTED  MEN. 


ENLISTMENT   AND   RE-ENLISTMENT. 


Par. 

1012.  General  qualifications. 

1013.  Limit  of  age. 

1014.  Enlistment  of  minors. 

1015.  Persons  not  to  bo  enlisted. 

1016.  The  same;  citizenship. 

1017.  The  same;  deserters,  minors, 

insane  or  intoxicated  per- 
sons. 

1018.  Term  of  enlistment;  qualifi- 

cations for  reenlistment. 


Par. 

1019.  Premium  for  recruit. 

1020.  Fraudulent  enlistment. 

1021.  Reeulistment. 

1022.  Additional  pay. 

1023.  Period  extended  to  three 

months. 

1024.  Certain  discharged  soldiers 

may  reenhst. 

1025.  No  pay  to  be  retained. 


1012.  Recruits  enlisting  in  the  Army  must  be  effective  general 


and  able-bodied  men,  and  between  the  ages  of  sixteen  and 
thirty  years,  at  the  time  of  their  enlistment.1  This  limita- 
tion  as  to  age  shall  not  apply  to  soldiers  re-enlisting. 


Mar.  16,  1502,  c. 


162,  8.  30,  v.  5,  p.  260;  Feb.  13,  1862,  c.  25,  s.  2,  v.l2,  p.  339- 
June  21,  1862,  lies.  37,  v.  12,  p.  620;  July  17,  1862  c.  200,  s 

' 


21,  v.  12,  p.  597,  Feb.  27,  1893,  v.  27,  p.  486.    Sec.  1116,  11.  S. 

1013.  Hereafter,  in  time  of  peace,  no  recruit  shall  be 
enlisted  in  the  Army  for  the  first  time  who  is  over  thirty  27,  p. 
years  of  age.     Act  of  February  27,  1893  (27  Stat,  L.,  486). 


1  Enlistment  is  a  contract;  but  it  is  one  of  those  contracts  which  changes  the 
status,  and  where  that  is  changed  no  breach  of  contract  destroys  the  new  status  or 
relieves  from  the  obligations  which  its  existence  imposes.  *  ""  *  By  enlistment 
the  citizen  becomes  a  soldier.  His  relations  to  the  State  and  the  public  are  changed. 
He  acquires  a  new  status,  with  correlative  rights  and  duties,  and  although  he  may 
violate  his  contract  obligations,  his  status  as  a  soldier  is  unchanged.  He  can  not  of 
his  own  volition  throw  off  the  garments  he  has  once  put  on,  nor  can  he,  the  State 
not  objecting,  renounce  his  relations  and  destroy  his  status  on  the  plea  that,  if  he 
had  disclosed  truthfully  the  facts,  the  other  party,  the  State,  would  not  have  entered 
into  the  new  relations  with  him,  or  permitted  him  to  change  his  status.  (U.  S.  v. 
Grimley.  137  U.  S.,  147.) 

Our  law  not  defining  enlistment,  nor  designating  what  proceeding,  or  proceedings, 
shall  or  may  constitute  an  enlistment,  it  may  be  said,  in  general,  that  any  act  or  acts 
which  indicate  an  undertaking,  on  the  part  of  a  person  legally  competent  to  do  so,  to 
render  military  service  to  the  United  States  for  the  term  required  by  existing  law, 
and  an  acceptance  of  such  service  on  the  part  of  the  Government,  may  ordinarily  bo 
regarded  as  legal  evidence  of  a  contract  of  enlistment  between  the  parties,  and  as 
equivalent  to  a  formal  agreement  where  no  such  agreement  has  been  had.  The  for  fcy- 
seyenth  article  of  war  practically  makes  the  receipt  of  pay  by  a  party  as  a  soldier 
evidence  of  an  enlistment  on  his  part,  estopping  him  from  denying  his  military 
capacity  when  sought  to  be  made  amenable  as  a  deserter.  The  continued  rendering 
of  service,  which  is  accepted,  may  constitute  an  enlistment.  But  enlistments  in  our 
Army  are  now  almost  invariably  evidenced  by  a  formal  writing  and  engagement 
under  oath.  (Dig.  J.  A.  G.,  384,  par.  1.)  See  also  In  re  McDonald,  1  Lowell,  100. 

Any  male  citizen  of  the  United  States,  or  person  who  has  legally  declared  his 
intention  to  become  a  citizen,  if  above  the  age  of  twenty-one  and  under  the  ago  of 
thirty  years,  able-bodied,  free  from  disease,  of  good  character  and  temperate  habits, 
may  be  enlisted  under  the  restrictions  contained  in  this  article.  In  regard  to  age  or 
citizenship  this  regulation  shall  not  apply  to  soldiers  who  have  served  honestly  and 
faithfully  a  previous  enlistment  iu  the  Army.  (Par.  823,  A.  R.,  1895.) 


356  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

minorsstmeilt  °f     1014*  No  Persou  under  the  age  of  twenty-one  years  shall 
May  i5,iOT2.o.  be  eniisted  or  mustered  into  the  military  service  of  the 

162,  s.  1,  v.  17,  p. 

in.  United  States  without  the  written  consent  of  his  parents 

*  or  guardians :  Provided^  That  such  minor  has  such  parents 
or  guardians  entitled  to  his  custody  and  control. 
bePeenU8tedUOt  to     101&  ^°  ulinor  under  the  age  of  sixteen  years,  no  insane 
Mar.  2, 1833,  c-  or  intoxicated  person,  no  deserter  from  the  military  service 
SuiyV* isM^cl  of  the  United  States,  and  no  person  who  has  been  con- 
3so'- 8MarV3,  lees' victed  of  a  felony  shall  be  enlisted  or  mustered  into  the 
l^^&i-  military  service. 

c.  69,  v.  19,  p.  242'.      Sec.  1118,  R.  S. 

enhhisame;  citi  1016.  In  time  of  peace  no  person  (except  an  Indian)  who 
is  not  a  citizen  of  the  United  States,  or  who  has  not  made 
legal  declaration  of  his  intention  to  become  a  citizen  of  the 
United  States,  or  who  can  not  speak,  read,  and  write  the 
English  language,  or  who  is  over  thirty  years  of  age,  shall 
be  enlisted  for  the  first  enlistment  in  the  Army.  Sec.  2,  act 
of  August  1, 1894  (28  Stat.  £.,  215). 

mtaors^^dbS-  1017.  Every  officer  who  knowingly  enlists  or  musters  into 
ed3  Art  war  ^e  military  service  any  minor  over  the  age  of  sixteen  years 
without  the  written  consent  of  his  parents  or  guardians, 
or  any  minor  under  the  age  of  sixteen  years,  or  any  insane 
or  intoxicated  persons,  or  any  deserter  from  the  military  or 
naval  service  of  the  United  States,  t>r  any  person  who  has 
been  convicted  of  any  infamous  criminal  offense,  shall,  upon 
conviction,  be  dismissed  from  the  service,  or  suffer  such 
other  punishment  as  a  court-martial  may  direct.1  Third 
Article  of  War. 
Term  of  enlist-  1018.  That  hereafter  all  enlistments  in  the  Army  shall 

ment. 

Qualification  s  be  for  the  term  of  three  years,  and  no   soldier  shall  be 

lor     reenlist- 


m!.nt>  «  again  enlisted  in  the  Army  whose  service  during  his  last 

preceding  term  of  enlistment  has  not  been  honest  and 
faithful.2 

1  Sections  1116, 1117,  and  1118,  Revised  Statutes,  providing  that  deserters,  convicted 
felons,  insane;  or  intoxicated  persons,  and  certain  minors  shall  not  be  enlisted  are 
regarded  as  directory  only,  and  not  as  making  necessarily  void  such  enlistments,  but 
as  rendering  them  voidable  merely,  at  the  option  of  the  Government.    In  cases  of 
such  enlistments,  except  of  course  where  the  party,  by  reason  of  mental  derange- 
ment or  drunkenness  was  without  the  legal  capacity  to  contract,  the  Government 
may  elect  to  hold  the  soldier  to  service,  subject  to  any  application  for  discharge 
which  may  be  addressed  by  himself  or  his  parent,  etc.,  either  to  the  Secretary  of  War 
or  to  a  United  States  court.    Ibid.,  385,  par.  3.    See,  also,  TJ.  S.  v.  Grimley,  137  TJ.  S., 
147,  cited  in  note  to  paragraph  1012,  supra. 

The  enlistment  contract  of  a  minor  is  void  when  the  recruit  is  under  16,  with  or 
without  the  consent  of  the  parent.  In  re  Lawler,  40  F.  K.,  233.  It  is  not  void,  but 
voidable  only,  as  to  minors  between  16  and  21.  U.  S.  v.  Morrissey,  137  U.  S.,  157.  It  is 
not  voidable  at  the  instance  of  the  minor.  Ibid.  It  is  voidable  at  the  instance  of  the 
parent  or  guardian.  Com.  v.  Blake,  8  Phil.,  523 ;  Turner  v.  Wright,  5  ibid.,  290 ;  Menges 
v.  Camac,  1  Serg.  and  R.,  87;  Henderson  v.  Wright,  ibid.,  299;  Seavey  V.Seymour,  3 
Cliff.,  439;  In  re  Cosenow,  37  F.  R.,668;  In  re  Hearn,  32  ibid.,  141;  In  re  Davison.  21 
ibid.,  618 ;  U.  S.  v.  Wagner,  24  ibid.,  135 ;  In  re  Dohrendorf  40  F.  R.,  148 ;  In  re  Spencer, 
ibid.,  149;  In  re  Lawler,  ibid.,  233;  In  re  Wall  8  ibid.,  85. 

A  minor's  contract  of  enlistment  is  voidable,  not  void,  and  is  not  so  voidable  at  the 
instance  of  the  minor.  If,  after  enlistment,  he  commits  an  offeuse.  is  actually 
arrested,  and  in  course  of  trial  before  the  contract  is  duly  avoided,  he  may  be  tried 
and  punished.  (In  ro  Wall,  8  Fed.  Rep.,  85 ;  see  also  Barrett  v.  Hopkins,  7  ibid.,  312.) 

2  The  contract  of  enlistment  is  an  entirety.    If  service  for  any  portion  of  the  time 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  357 

1019.  A  premium  of  two  dollars  shall  be  paid  to  any  cit-  rjfr™™ium   for 
izen,  non-commissioned  officer,  or  soldier  for  each  accepted    Jun°  21.  1862, 

.     .  7  .    .  Res.  37,  v.  12.  p. 

recruit  lie  may  bring*  to  a  recruiting  rendezvous.  020. 

1020.  That  fraudulent  enlistment,  and  the  receipt  of  any    Fraudulent  en- 
pay  or  allowance  thereunder,  is  hereby  declared  a  military    sec.  3,  July  27. 
offense  and  made  punishable  by  court  martial,  under  the 
Sixty-second  Article  of  War.     Sec.  3,  act  of  July  27,  1892. 

(27  Stat.  L.,  278). 

HE-ENLISTMENT. 

1021    All  enlisted  men,  mentioned  in  section  twelve  hun     Re  enlistment. 

S6C    3    -A.  n tr    1 

dred  and  eighty  [paragraph  G38,  ante)  who,  having  been  i894,v.28,  p.2ic'. 

honorably  discharged,  have  re-enlisted  or  shall  re-enlist 

within  three   months  thereafter,   shall,   after   five  years 

service,  including  their  first  enlistment,  be  paid  at  the  rate 

allowed  in  said  section  to  those  serving  in  the  fifth  year  of 

their  first  enlistment.1 

1022.  Every  soldier  who,  having  been  honorably  dis-    Additional 
charged,  re-enlists  within  three  months  thereafter,'  shall  1Q^ec  3<  Au% 1. 

18y4,  V.  £o,  p  Jlu. 

be  further  entitled,  after  five  years  service,  including  his  sec.i284,R.s. 
first  enlistment,  to  receive,  for  the  period  of  five  years  next 
thereafter,  two  dollars  per  month  in  addition  to  the  ordi- 
nary pay  of  his  grade;  and  for  each  successive  period  of 
five  years  of  service,  so  long  as  he  shall  remain  continu- 
ously in  the  Army,  a  further  sum  of  one  dollar  per  month. 
The  past  continuous  service,  of  soldiers  now  in  the  Army, 
shall  be  taken  into  account,  and  shall  entitle  such  soldier 
to  additional  pay  according  to  this  rule;  but  services  ren- 
dered prior  to  August  fourth,  eighteen  hundred  and  fifty- 
four,  shall,  in  no  case,  be  accounted  as  more  than  one 
enlistment. 

is  criminally  omitted  the  pay  and  allowances  for  faithful  services  are  not  earned. 
(Lander v.  U.S.  92  U.S. ,77.) 

As  to  what  constitutes  faithful  service  within  the  meaning  of  this  statute,  see 
note  to  paragraph  1021,  post.  This  section  operates  to  repeal  section  1119,  Revised 
Statutes,  and  section  2  of  the  act  of  June  16.  1890  (26  Stat.  L.,  187),  which  fixed  the 
term  of  enlistment  in  the  Army  at  five  years. 

1  The  additional  pay  given  to  soldiers  by  this  section  does  not  depend  upon  niero 
length  of  service,  hut  upon  two  other  conditions— an  honorable  discharge  and  a  vol- 
untary reeulistment.  Webb  v.  U.  S.,  23  C.  Cls.  R.,  58.  It  is  intended,  primarily, 
to  be  an  inducement  to  the  prompt  reenlistment  of  an  honorably  discharged  soldier, 
and  it  can  be  earned  in  no  other  way.  Ibid. 

Tho  act  of  June  16,  1890  (26  Stat.  L  ,  157).  contained  the  provision  "  that  the  Secre- 
tary of  War  shall  determine  what  misconduct  shall  constitute  a  failure  to  render 
honest  and  faithful  service  within  the  meaning  of  this  act.  But  no  soldier  who  has 
deserted  at  any  time  during  the  term  of  an  enlistment  shall  be  deemed  to  have  served 
such  term  honestly  and  faithfully."  Under  the  authority  conferred  by  this  statute 
the  Secretary  of  War  has  decided  that  iu  the  following  cases  there  has  been  a  failure 
to  render  honest  and  faithful  service : 

(1)  Desertion. 

(2)  When  the  soldier  is  in  confinement  under  a  general  court-martial  sentence 
expressly  imposing  imprisonment  until  or  beyond  the  expiration  of  his  term  ;  when 
discharged  under  sentence  of  general  court-martial ;  when  discharged  by  order  from 
the  War  Department  specifying  forfeiture,  or  because  of  imprisonment  by  the  civil 
authority. 

(3)  W  hen  the  soldier  i  s  discharged  for  minority  concealed  at  enlistment,  or  for  other 
cause  involving  fraud  111  enlistment,  or  for  disability  caused  by  his  misconduct. 

(4)  Upou  the  approved  finding  of  a  board  of  officers  called  under  paragraph  148, 
that  the  soldier  has  not  served  honestly  and  faithfully  to  the  date  of  discharge. 

The  cause  of  forfeiture  will  be  stated  on  the  muster  and  pay  rolls  and  on  the  final 
statements  of  the  soldier. 


358  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

p  e  r  i  o  a  e  x  -     1023.  That  the  period  within  which  soldiers  may  re-enlist 

tended    to  three 

months.  with  the  benefits  conferred  by  sections  twelve  hundred  and 

1894,%.  zs,  p.liie'.  eighty-two  and  twelve  hundred  and  eighty  four  of  the 
Revised  Statutes,  be,  and  the  same  is  hereby,  extended  to 
three  months;  and  hereafter  every  enlisted  man  in  the 
Army,  excepting  general  service  clerks  and  general  service 
messengers,  shall  be  entitled  to  all  the  benefits  conferred 
by  sections  twelve  hundred  and  eighty  one  and  twelve  hun- 
co.ntinuons(}red.  and  eighty-two  of  the  Revised  Statutes.  Provided, 
That  to  entitle  them  to  the  additional  pay  authorized  by 
section  twelve  hundred  and  eighty-one,  for  men  serving  in 
the  third,  fourth,  and  fifth  years,  the  service  must  have 
been  continuous  within  the  meaning  of  this  section.  Sec.  5, 
act  of  August  1,  1894  (28  Stat.  L.,  216). 


char  *eaa  soldiers     ^^4.  That  any  soldier  discharged  since  January  twenty- 
may  re  enlist.     seventh,  eighteen  hundred  and  ninety-three,  who  has  been 

Sec.  2,  Aug.  1, 

1894,  v,  28,  p.  2iG.  prevented  from  re-enlisting  by  the  operations  of  the  Act 
of  Congress  approved  February  twenty-seventh,  eighteen 
hundred  and  ninety-three,  and  who  may  hereafter  enlist 
within  three  months  from  the  date  of  the  approval  of  this 
Act,  shall  be  considered  to  have  re-enlisted  and  shall  be 
entitled  to  receive  while  serving  subsequent  to  such  enlist- 
ment the  same  pay,  service  pay,  and  allowances  as  if  he  had 
re-enlisted  within  thirty  days  from  his  latest  discharge.1 
Sec.  2,  act  of  August  1,  1894  (28  Stat.  L.,  216). 

NO  pay  to  be  re-     1025.  That  hereafter  no  pay  shall  be  retained,  but  this 
Marie,  isoe,  v.  provision   shall  not  apply  to   deductions  authorized  on 
account  of  the  Soldiers7  Home.2     Act  of  March  16,  1896 
(29  Stat.  L.,  60). 

THE   RETIREMENT    OF   ENLISTED   MEN. 


Par. 


Par. 


1026.  Retirement  of  enlisted  men.     1027.  Allowance    for    subsistence 

and  clothing. 

Retirement  of     1026.  That  when  an  enlisted  man  has  served  as  such 

enlisted  men  alter 

thirty  years'  thirty  years  in  the  United  States  Army  or  Marine  Corps, 
Feixk  1885, T.  either  as  private  or  non-commissioned  officer,  or  both,  lie 

ISM,' v.  26,  p.  so*',  shall  by  application  to  the  -President  be  placed  on  the 
retired  list  hereby  created,  with  the  rank  held  by  him  at 
the  date  of  retirement,  and  he  shall  receive  thereafter 


1  This  section  repeals  and  replaces  the  requirement  of  the  act  of  February  27, 1893 
(27  Stat.  L.,  486),  "that  hereafter,  in  time  of  peace  no  recruit  shall  be  enlisted  in  the 
Army  for  the  first  time  who  is  over  30  years  of  age,  and  no  private  shall  be  reenlisted 
who  has  served  ten  years  or  more,  or  wno  is  over  35  years  of  age,  except  such  as  have 
already  served  as  enlisted  men  for  twenty  years  or  upward." 

a  The  act  of  February  12,  1895  (28  Stat  L.,  655),  expressly  repealed  so  much  of  the 
act  of  June  16, 1890  (26  Stat.  L.,  157),  as  authorized  the  retention  of  $4  per  month  from 
the  pay  of  enlisted  men  in  the  first  year  ot  their  first  enlistment.  This  statute  repeals, 
in  terms,  all  prior  acts  authorizing  the  retention  of  pay  from  enlisted  men.  The 
deduction  of  12£  cents  per  month  from  the  pay  of  all  enlisted  men,  for  the  support 
of  the  Soldiers'  Home,  is  cxcepted  from  the  operation  of  this  section. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  359 

seventy-five  per  centum  of  tbe  pay  and  allowances  of  the 

rank  upon  which  he  was  retired  :  Provided,  That  if  said  ^War    service, 

etc.,  to  be  com- 


, 

enlisted  man  had  war  service  with  the  Army  in  the  field,  P£je<i  as  double 

or  in  the  Navy  or  Marine  Corps  in  active  service,  either  as 

volunteer  or  regular,  during  the  war  of  the  rebellion,  such 

war  service  shall  be  computed  as  double  time  in  computing 

the  thirty  years  necessary  to  entitle  him  to  be  retired.1 

Act  of  February  14,  1885  (23  Stat,  L.,  305],  as  amended  by 

act  of  September  30,  1890  (26  Stat.  L.,  504). 

1027.  That  hereafter  a  monthly  allowance  of  nine  dollars    Allowance  for 

,„„  ,  L     i    •      i  •    "       />   ,  ,          11  c  ,     subsistence   and 

and  fifty  cents  be  granted  in  lieu  of  the  allowance  for  sub  clothing. 
sistence  and  clothing.  Act  of  March  16,1896(29  Stat.  29,0*62.  ' 
L.,  62}. 

FURLOUGHS   TO   ENLISTED   MEN. 

Par.  j    Par. 

1028.  Furloughs.  1030.  Transfer    from  military   to 

1029.  Furlough   at  expiration   of 

three  years'  service. 

1028.  Every  officer  commanding  a  regiment  or  an  inde-    Furloughs^ 
pendent  troop,  battery,  or  company,  not  in  the  field,  may, 

when  actually  quartered  with  such  command,  grant  fur- 
loughs to  the  enlisted  men,  in  such  numbers  and  for  such 
time  as  he  shall  deem  consistent  with  the  good  of  the  service. 
Every  officer  commanding  a  regiment,  or  an  independent 


naval  service. 


'The  act  of  February  14,1885  (23  Stat.  L.,  305)  .which  created  the  retired  list  for 
enlisted  men,  was  amended  by  the  act  of  September  30, 1890  (26  Stat.  L.,  504),  by  the 
addition  of  the  proviso  permitting  war  service  during  the  war  of  the  rebellion  to  be 
computed  as  double  time  in  computing  the  thirty  years'  service  necessary  to  entitle 
him  to  be  retired. 

An  enlisted  man  on  the  retired  list  is  subject  to  trial  by  court-martial,  and  to  dis- 
honorable discharge  by  sentence,  if  such  bo  adjudged.  But  the  existing  law,  in 
entitling  him  to  be  retired  if  he  complies  with  its  conditions,  evidently  contemplates 
that  he  shall  remain  a  pensioner  on  the  bounty  of  the  Government  during  the  remain- 
der of  his  life,  if  not  forfeiting  his  claim  by  serious  misconduct.  So,  held  that  retired 
enlisted  men  could  not  legally  be  discharged  by  Executive  order  under  the  Fourth 
Article  of  War,  which  contemplates  soldiers  on  the  active  list  only.  (Dig.  J.  A.  G., 
669,  par.  24.) 

Held,  in  the  absence  of  any  legislation  to  tbe  contrary,  that  retired  enlisted  men, 
like  retired  officers,  might  legally  be  employed  in  any  Department  of  the  Govern- 
ment, as  clerks,  messengers,  watchmen,  etc.,  and  receive  pay  for  such  employment, 
while  at  the  same  time  retaining  their  positions  on  the  retired  list  and  receiving 
retired  pay.  (Dig.  J.  A.  G.,  670,  par.  25.) 

The  act  of  February  14,  1885  (23  Stat.  L.,  305),  entitles  a  retired  enlisted  man  to 
three-fourths  of  his  service  ration.  He  is  not  entitled  to  commutation  for  things 
which,  in  active  service,  he  enjoys  only  in  common  with  others,  such  as  medicine, 
medical  services,  fuel,  and  quarters.  (McKenna  v.  U.  S.,  23  C.  Cls.  It.,  308.) 

The  .authorized  pay  and  allowances  of  retired  enlisted  men  will  be  paid  them 
monthly  by  the  Pay  Department.  Their  pay  will  be  three-fourths  of  the  monthly 
pay  allowed  them  by  law  in  the  grade  held  when  retired,  including  reenlisted  and 
continuous-service  pay  then  received.  No  deduction  will  be  made  except  tho 
monthly  tax  of  12i  cents  for  tho  support  of  the  Soldiers'  Home.  They  are  not  enti- 
tled to  commutation  for  fuel  or  quarters.  (Par.  138,  A.  11.,  1895.)  Commutation  for 
subsistence  and  clothing  is  fixed  by  tho  act  of  March  16, 1896  (paragraph  1027,  supra) 
at  nine  dollars  and  fifty  cents  per  month  for  all  retired  enlisted  men. 

It  has  been  held  by  the  Secretary  of  War  that  the  term  "war  service,"  as  used  in 
tho  act  of  September  30,  1890,  shall  include  service  rendered  as  a  commissioned 
officer,  and  that,  for  the  purposes  of  this  statute,  the  war  began  on  April  15, 1861,  and 
ended  on  April  2,  1866,  as  respects  all  theatres  of  operation,  except  the  State  of  Texas, 
and  as  to  that  State  that  the  war  ended  on  April  20,  1866.  (Circular  No.  2,  11  H.  Q. 
A.,  March  10,1891.) 

Upon  the  retirement  of  an  enlisted  man  from  active  service  he  is  entitled  to  trans- 
portation in  kind  to  the  place  of  his  enlistment  or  to  his  home.  Section  1290,  Re- 
vised Statutes,  does  not  apply  to  enlisted  men  transferred  to  the  retired  list,  in  that 
they  are  not  discharged.  (3  Dig.  Compt.  Dec.,  227;  U.  S.  v.  Tyler,  105  U.  S.,  244.) 


360  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

troop,  battery,  or  company,  in  the  field,  may  grant  furloughs 
not  exceeding  thirty  days  at  one  time,  to  five  per  centum 
of  the  enlisted  men,  for  good  conduct  in  the  line  of  duty, 
but  subject  to  the  approval  of  the  commander  of  the 
forces  of  which  said  enlisted  men  form  a  part.  Every  com- 
pany officer  of  a  regiment,  commanding  any  troop,  battery, 
or  company  not  in  the  field,  or  commanding  in  any  garri- 
son, fort,  post,  or  barrack,  may,  in  the  absence  of  his  field 
officer,  grant  furloughs  to  the  enlisted  men,  for  a  time  not 
exceeding  twenty  days  in  six  months,  and  not  to  more  than 
two  persons  to  be  absent  at  the  same  time.1  Eleventh  Ar- 
ticle of  War. 


of       1029'    That  at  the  6Ild  °f  tliree  VeaTS  fr°m  the  date  °f  his 

three  years  serv  enlistment  every  soldier  whose  antecedent  service  has  been 
i89oCv226"nei57'  ^a^u^u^  snall  be  entitled  to  receive  a  furlough  for  three 
months,  and  that  in  time  of  peace  he  shall  at  the  end  of 
such  furlough  be  entitled  to  receive  his  discharge  upon 
his  own  application:  Provided  further,  That  soldiers  dis- 
charged under  the  provisions  of  this  section  shall  not  be 
entitled  to  the  allowances  provided  in  section  twelve  hun- 
dred and  ninety  of  the  Eevised  Statutes.2  Sec.  2,  act  of 
June  16,  1890  (26  Mat.  L.,  157). 

1  Furloughs  in  the  prescribed  form  for  periods  of  twenty  days  may  be  granted  to 
enlisted  men  by  commanding  officers  of  posts,  or  by  regimental  commanders,  if  the 
companies  to  which  they  belong  are  under  their  control.     A  furlough  will  not  be 
granted  to  a  soldier  about  to  be  discharged.     (Par.  106,  A.  R.,  1895.) 

Department  commanders  may  grant  furloughs  to  enlisted  men,  sergeants  of  the 
post,  noncommissioned  staff  excepted,  for  two  months,  and  the  Commanding  General 
of  the  Army  for  four  months,  or  they  may  extend  to  such  periods  furloughs  already 
granted.  For  a  longer  period  than  four  months  the  authority  of  the  Secretary  of 
War  is  necessary.  Permission  to  delay  may  be  granted  to  enlisted  men  traveling 
under  orders  as  authorized  for  furloughs.  The  conditions  under  which  furloughs  to 
soldiers  on  reenlistment  are  authorized  will  be  announced  from  time  to  time  in  orders. 
(Par.  107,  ibid.) 

Furloughs  to  sergeants  of  the  post  noncommissioned  staff,  or  to  enlisted  men  act- 
ing as  such,  may  be  granted  as  follows  :  By  a  post  commander  for  seven  days  in  case 
of  emergency  only;  by  a  department  commander  for  one  month.  Application  for 
furlough  for  a  longer  period  will  be  forwarded  to  the  Adjutant-General  of  the  Army 
for  the  decision  of  the  Secretary  of  War.  (Par.  108,  ibid.) 

Furloughs  will  not  be  granted  by  commanding  officers  permitting  soldiers  to  go 
beyond  the  limits  of  the  next  higher  command.  To  enable  them  to  pass  such  limits 
the  sanction  of  higher  authority  must  be  obtained  and  indorsed  on  the  furloughs. 
The  approval  of  the  Secretary  of  War  must  be  obtained  to  allow  an  enlisted  man  on 
furlough  to  leave  the  United  States.  The  limits  prescribed  will  be  stated  in  the  f  ur- 
lough,  and  if  exceeded,  it  may  be  revoked  and  the  soldier  arrested.  A  company  com- 
mander in  forwarding  an  application  for  furlough  will  state  previous  absences  on 
furlough,  and  the  authority  therefor.  (Par.  109,  ibid.) 

On  the  application  of  a  soldier  on  furlough,  made  at  the  nearest  military  station 
and  showing  clearly  the  urgency  of  his  case,  a  department  commander  may  order 
transportation  and  subsistence  to  be  furnished  to  enable  him  to  rejoin  his  proper  sta- 
tion, and  the  company  commander  will  charge  the  cost  thereof  against  the  soldier's 
pay  on  the  next  muster  and  payroll,  in  accordance  with  paragraphs  1082  and  1277. 
The  date  of  the  application  will  be  entered  on  the  furlough.  (Par.  110,  ibid.) 

A  soldier  who  has  returned  from  furlough  to  the  station  from  which  f'urloughed, 
his  company  having  in  his  absence  changed  station,  is  entitled  to  transportation  at 
the  expense  of  the  Government  to  the  new  station  of  his  company.  (Par.  111.  ibid.) 

Soldiers  on  furlough  will  not  take  with  them  their  arms  or  accouterments,  and  no 
payments  will  be  made  to  them  without  authority  from  the  Secretarv  of  War.  (Par. 
112,  ibid.) 

2  See  in  this  connection  section  2  of  the  act  of  August  1,  1894  (paragraph  101G,  supra), 
which  reduces  the  length  of  the  term  of  enlistment,  in  time  of  peace,  to  three  years. 
This  section  will,  therefore,  cease  to  be  operative  as  to  furloughs  on  August  1,  1897, 
and  as  to  discharges  at  expiration  of  furlough  on  November  1,  1897. 


THE   MILITARY    LAWS    OF   THE   UNITED   STATES. 


361 


TRANSFER  OF  ENLISTED  MEN. 

1030.  Any  person  enlisted  in  the  military  service  of  the    Transfer  from 

military  to  naval 

United  States  may,  on  application  to  the  Navy  Depart- service, 
inent,  approved  by  the  President,  be  transferred  to  thesoi.Vi.V  is.'p! 
Navy  or  Marine  Corps,  to  serve  therein  the  residue  of  his    sec  1421,  R.S. 
term  of  enlistment,  subject  to  the  laws  and  regulations  for 
the  government  of  the  Navy.    But  such  transfer  shall  not 
release  him  from  any  indebtedness  to  the  Government, 
nor,  without  the  consent  of  the  President,  from  any  pen- 
alty incurred  for  a  breach  of  military  law.! 


DISCHARGE   OF  ENLISTED  MEN. 


Par.  I     Par. 

1031.  Discharge  of  enlisted  men.     1034 

1032.  Discharge  by  purchase. 

1033.  Loss  of   certificate  of  dis-     1035. 

charge. 


Discharge     certificates     in 

true  name. 
Honorable  discharge  to  be 

returned    to  officers  and 

enlisted  men. 


1031.  No  enlisted  man,  duly  sworn,  shall  be  discharged  Discharge  of 
from  the  service  without  a  discharge  in  writing,  signed  by 
a  field  officer  of  the  regiment  to  which  he  belongs,  or  by 
the  commanding  officer,  when  no  field  officer  is  present j 
and  no  discharge  shall  be  given  to  any  enlisted  man  before 
his  term  of  service  has  expired,  except  by  order  of  the 
President,  the  Secretary  of  War,  the  commanding  officer 
of  a  department,  or  by  sentence  of  a  general  court-martial.2 
Fourth  Article  of  War. 

'TRANSFER  OF  ENLISTED  MEN. 

Transfers  of  enlisted  men  will  be  made  for  cogent  reasons  only.  They  will  be 
effected  as  follows : 

(1)  From  one  company  to  another  of  the  same  regiment,  not  involving  change  of 
station,  by  the  colonel.    In  cases  involving  change,  then  by  the  colonel  with  the  con- 
sent of  the  department  commander  if  change  of  station  is  within  department  limits. 

(2)  From  one  regiment  to  another,  and  between  companies  of  the  same  regiment 
serving  in  different  military  departments,  by  the  Commanding  General  of  the  Army. 

(3)  In  all  other  cases,  by  the  Secretary  of  War.    (Par.  113,  A.  R.,  1895.) 

DETACHED  SOLDIERS. 

Enlisted  men  detached  from  their  companies  will  be  provided  with  descriptive  lists 
showing  the  pay  due  them,  the  condition  of  their  clothing  allowances,  and  all  infor- 
mation necessary  to  the  settlement  of  their  accounts  with  the  Government  should 
they  be  discharged.  When  it  can  be  avoided,  the  descriptive  list  will  not  bo  intrusted 
to  the  soldier,  but  to  an  officer  or  noncommissioned  officer,  under  whose  charge  he 
may  be  serving,  or  it  may  be  forwarded  by  mail.  The  immediate  commanding  officer 
will  note  upon  the  descriptive  lists  the  date  and  result  of  the  last  vaccination  of  each 
soldier.  (Par.  105,  ibid.) 

,  "An  enlisted  man  will  not  be  discharged  before  the  expiration  of  his  term  except: 
(1)  By  order  of  the  President  or  Secretary  of  War. 

j      (2)  By  sentence  of  a  general  court-martial. 

(3)  On  certificate  of  disability,  by  direction  of  the  commander  of  a  territorial  de- 
partment or  army  in  the  field ;  but  when  the  disability  of  a  soldier  is  caused  by  dis- 
ease contracted  before  enlistment,  or  by  his  own  misconduct  or  bad  habits,  discharge 
will  be  ordered  only  by  the  Secretary  of  War. 

(4)  In  compliance  with  an  order  of  one  of  the  United  States  courts,  or  a  justice  or 
a  judge  thereof,  on  a  writ  of  habeas  corpus.    (Par.  140,  A.  II.,  1895.) 

The  act  of  March  10,  1896  (29  Stat.  L..  63),  contains  the  requirement  "that  no 
enlisted  man  discharged  by  order  of  the  Secretary  of  War  for  disability  caused  by 
his  own  misconduct  shall  be  entitled  to  the  travel  allowances  provided  for  in  section 
1290  of  the  Revised  Statutes."  See  Par.  653,  ante. 

When  au  enlisted  man  is  discharged,  his  company  commander  will  furnish  him 


362  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

DISCHARGE  BY  PURCHASE. 

Discharge  by     1032,  That  in  time  of  peace  the  President  may,  in  his 
sec.  viune  16,  discretion  and  under  such  rules  and  upon  such  conditions 


as  he  shall  prescribe,  permit  any  enlisted  man  to  purchase 
his  discharge  from  the  Army.  The  purchase  money  to 
be  paid  under  this  section  shall  be  paid  to  a  paymaster 
of  the  Army  and  be  deposited  to  the  credit  of  one  or  more  of 
the  current  appropriations  for  the  support  of  the  Army,  to 
be  indicated  by  the  Secretary  of  War,  and  be  available  for 
the  payment  of  expenses  incurred  during  the  fiscal  year 
in  which  the  discharge  is  made.1  Sec.  4,  act  of  June  16, 
1890  (26  Stat.  L.,  157). 

with  final  statements  in  duplicate  or  a  full  statement  in  writing  of  the  reasons  why 
such  final  statements  are  not  furnished.  Final  statements  will  not  be  furnished  a 
soldier  who  has  forfeited  all  pay  and  allowances  and  has  no  deposits  nor  detained  pay 
due  him.  When  the  discharge  is  made  on  certificate  of  disability,  the  ascertained 
disability  as  recited  in  the  certificate  must  be  given  in  the  final  statements  as  the 
reason  or  cause  for  discharge.  (Par.  141,  ibid.) 

When  an  enlisted  man  is  discharged  by  expiration  of  service  his  discharge  will 
take  effect  on  the  last  day  thereof;  i.  e.,  it  enlisted  on  the  second  day  of  the  month 
his  term  will  expire  on  the  first  day  of  the  same  month  in  the  last  year  of  his  term 
of  enlistment.  (Par.  142,  ibid.) 

For  provisions  of  regulations  respecting  the  discharge  of  enlisted  men  see  para- 
graphs 140-157,  Regulations  of  1895. 

Discharge  certificates  will  not  be  made  in  duplicate.  Upon  satisfactory  proof  of 
the  loss  of  a  discharge  or  of  its  destruction  without  the  fault  of  the  party  entitled  to 
it,  the  War  Department  may  issue  to  such  party  a  certificate  of  service,  showing 
date  of  enlistment  in  and  discharge  from  the  Army  and  character  given  on  discharge 
certificate.  Discharge  certificates  must  not  be  forwarded  to  the  War  Department 
in  correspondence  unless  called  for.  (Par.  143,  A.  R.,  1895.) 

Blank  forms  for  discharge  and  final  statements  will  be  furnished  by  the  Adjutant- 
General  of  the  Army,  and  will  be  retained  in  the  personal  custody  of  company  com- 
manders; those  for  discharge  will  be  of  three  classes:  For  honorable  and  for  dis- 
honorable discharge,  and  for  discharge  without  honor.  They  will  be  vised  as  fol- 
lows : 

(1)  The  parchment  discharge  blank,  for  honorable  discharge  only,  and  the  word 
"honorably  "  will  be  interlined  in  the  old  blanks  when  used. 

(2)  The  blank  for  dishonorable  discharge,  for  such  discharge  alone. 

(3)  The  blank  for  discharge  without  honor,  when  a  soldier  is  discharged  : 
(a)  Without  trial,  on  account  of  fraudulent  enlistment. 

(6)  Without  trial,  on  account  of  having  become  disqualified  for  service,  physically 
or  in  character,  through  his  own  fault. 

(c)  On  account  of  imprisonment  under  sentence  of  a  civil  court. 

(d)  On  account  of  being  at  the  expiration  of  his  term  of  enlistment  in  confinement 
under  the  sentence  of  a  general  court-martial  which  does  not  provide  for  dishonor- 
able discharge. 

(e)  With  forfeiture  of  retained  pay  on  the  approved  finding  of  a  board  that  he  has 
not  served  honestly  and  faithfully. 

(/)  When  discharge  without  honor  is  specially  ordered  by  the  Secretary  of  War 
for  any  other  reason.  (Par.  151,  ibid.) 

An  enlisted  man  remains  in  service  until  receipt  of  his  discharge,  or  until  such 
action  is  taken  as  will  render  him  legally  chargeable  with  notice  thereof,  notwith- 
standing the  expiration  of  his  term  of  enlistment  during  his  absence  on  a  furlough 
granted  at  his  own  request.  (2  "Compt.  Dec.,  94.) 

DISHONORABLE  DISCHARGE. 

A  dishonorable  discharge  from  the  service  is  a  complete  expulsion  from  the  Army 
and  covers  all  unexpired  enlistments.  (Par.  152,  A.  R.,  1895.) 

1  Under  section  4  of  the  act  of  June  16,  1890,  chapter  420,  the  President  may,  in  his 
discretion,  permit  a  soldier  to  purchase  his  discharge,  even  if  his  service  has  not 
been  faithful.  This  section  does  not,  as  do  section  1  (relating  to  pay)  and  section 
2  (relating  to  discharge  and  furlough),  prescribe  as  a  condition  to  receive  its  bene- 
fits that  the  antecedent  service  shall  have  been  "  faithful."  (Dig.  Opiu.  J.  A.  Gen., 
p.  362,  par.  32.) 

The  act  of  June  16,  1890,  section  4,  leaves  it  to  the  President,  "in  his  discretion," 
to  determine  the  amount  to  be  paid  for  the  discharge,  the  time  of  payment,  etc.,  and, 
indeed,  whethor  the  purchase  shall  be  permitted  at  all.  But  it  specifically  declare- 
that  the  money  when  paid  "shall  be  paid  to  a  paymaster  of  the  Army;"  and,  in  view 
of  this  express  provision,  held  that  payments  could  not  legally  be  made  to  post, 
regimental,  company,  or  other  commanders.  The  paymaster,  a  bonded  official,  is 
appointed  to  receive  payment  in  the  first  instance  and  thereupon  make  the  deposit 
directed  in  the  act.  (Ibid.,  par.  33.) 

Held  that  there  was  no  legal  authority  for  the  refunding,  by  the  military  authori- 
ties, of  money  paid  to  purchase  a  discharge  under  the  act  of  June  16,  1890.  This 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  363 


CERTIFICATES   OF  DISCHARGE. 

1033.  Whenever  satisfactory  proof  is  furnished  to  the    LOSS  of  certifi- 
cate of  discharge. 
War  Department  that  any  non-commissioned  officer  or  pri-  24Mar  3  1873.  c- 

vate  soldier  who  served  in  the  Army  of  the  United  States  582. 8< 

Ki*<*    224    11    X 

in  the  late  war  against  the  rebellion  has  lost  his  certificate 
of  discharge,  or  the  same  has  been  destroyed  without  his 
privity  or  procurement,  the  Secretary  of  War  shall  be 
authorized  to  furnish,  on  request,  to  such  non-commis- 
sioned officer  or  private  a  duplicate  of  such  certificate  of 
discharge,  to  be  indelibly  marked,  so  that  it  may  be  known 


clearly  appears  from  the  terms  of  the  act,  which  provides  that  the  money,  when  paid, 
"shall  be  deposited  in  the  Treasury  "  to  the  credit  of  some  current  appropriation,  to 
be  designated  by  the  Secretary  of  War.  to  be  "  available  for  the  payment  of  expenses 
incurred  during  the  fiscal  year  in  which  the  discharge  is  made."  The  act  moreover 
authorizes  the  President  to  permit  such  purchases  "  under  such  rules  and  upon  such 
conditions  as  he  shall  prescribe,"  and  nothing  is  found  in  the  rules  actually  pre- 
scribed (in  General  Orders  81,  108  of  1890.  48  of  189L  32  of  1892.,  or  17  of  1893)  which 
contemplates  or  refers  to  the  refunding  of  such  purchase  money.  (Ibid  .  p.  363, 
par.  35.) 

In  time  of  peace  a  soldier  serving  in  the  second  year  or  first  six  months  of  the 
third  year  of  his  first  enlistment  may  apply  to  the  Adjutant-General  of  the  Army 
through  military  channels  for  the  privilege  of  purchasing  his  discharge  but  such 
application  will  not  bo  entertained  unless  based  on  satisfactory  reasons  fully  set 
forth  by  the  applicant  and  verified  by  the  officer  forwarding  the  application,  nor 
unless  accompanied  by  a  statement  of  the  soldier's  immediate  commanding  officer 
showing  the  condition  of  his  accounts  If  such  application  be  granted,  the  pur- 
chase price  will  bo  entered  on  the  final  statements  as  an  item  duo  the  United  Statea. 
A  soldier  once  discharged  by  purchase  will  not  bo  granted  that  favor  a  second  time. 
A  soldier  serving  in  a  second  or  any  other  enlistment,  but  not  receiving  continuous 
service  or  reenlisted  pay,  is  not  debarred  from  discharge  by  purchase.  The  price  of 
purchase  in  the  first  month  of  the  second  year  will  be  $120,  and  will  be  $5  less  in 
each  succeeding  month  of  the  period  during  which  purchase  may  be  authorized. 
(Par.  144,  A.  It.,  1895.) 

Enlisted  men  who  have  served  meritoriously  twelve  years  or  more,  continuously 
or  otherwise,  will  be  classified  as  veteran  soldiers.  If  it  be  for  their  material  benefit, 
discharge  may  be  granted  them  by  the  Secretary  of  War  by  way  of  favor  as  veter- 
ans. A  soldier  once  discharged  as  a  veteran  will  not  be  discharged  again  by  way  of 
favor.  (Par.  145,  ibid.) 

Soldiers  discharged  as  provided  in  paragraphs  144  and  145  will  not  receive  travel 
allowances.  (Par.  146,  ibid.) 

A  soldier  who  has  obtained  his  discharge  by  purchase  under  the  provisions  of 
section  4.  act  of  June  16,  1890,  is  not  entitled  to  recover  the  money  paid  for  said  dis- 
charge in  pursuance  of  law  (2  Compt  Dec.,  546.)  The  accounting  officers  have  no 
authority  to  review  the  action  of  the  War  Department  refusing  to  discharge  the 
soldier  for  disability  and  requiring  him  to  purchase  his  discharge  as  a  condition 
precedent  to  his  release  from  service.  (2  Compt.  Dec.,  546.) 

DISCHARGE  FOR  DISABILITY. 

When  an  enlisted  man  is  permanently  unfitted  for  military  service  because  of 
wounds  or  disease,  he  should,  if  practicable,  be  discharged  on  certificate  of  disability 
before  the  expiration  of  the  term  of  service  in  which  the  disability  was  incurred. 
Blank  iorms  will  be  furnished  by  the  Adjutant-General  of  the  Army,  and  the  direc- 
tions thereon  will  be  strictly  complied  with.  (Par  154,  A.  R.,  1895.) 

When  physical  disability  does  not  appear  to  be  permanent,  was  incurred  in  line 
of  duty,  and  benefit  may  be  expected  from  a  change  of  climate,  a  report  of  the  case 
will  be  forwarded  for  the  action  of  the  Commanding  General  of  the  Army.  The 
soldier  will  not  be  transferred  to  another  company.  In  cases  likely  to  be  benefited 
by  treatment  in  the  Army  and  Navy  General  Hospital  at  Hot  Springs,  Ark.,  the 
application  required  by  the  regulations  for  admission  thereto  will  be  made.  A 
record  of  cases  transferred  under  the  foregoing  provisions,  with  a  report  of  results, 
will  bo  forwarded  to  the  Surgeon-General  at  the  end  of  each  calendar  year.  (Par. 

155,  ibid.) 

When  an  application  for  discharge  is  approved,  the  post  or  regimental  commander 
will  furnish  to  the  surgeon  by  whom  the  certificate  was  given,  or  to  the  senior  surgeon 
of  the  command  to  which  the  soldier  was  attached  at  the  time  of  his  discharge,  a 
letter  setting  forth  the  full  name  and  rank  of  the  soldier,  the  company  and  regiment 
to  which  he  belonged,  the  date  of  discharge,  and  the  cause  thereof  as  stated  in  the 
certificate.  The  surgeon,  having  made  a  true  copy  of  the  letter  for  the  completion 
of  his  own  records,  will  forward  the  original  to  the  Surgeon-General  direct.  (Par. 

156,  ibid.) 

When  there  is  a  probable  case  for  pension,  special  care  will  be  taken  to  state  in 
the  certificate  the  degree  of  disability,  to  describe  particularly  the  disability, 
wound,  or  disease,  the  extent  to  which  it  deprives  the  soldier  of  the  use  of  any  limb 
or  faculty,  or  affects  his  health,  strength,  activity,  constitution,  or  capacity  to  labor. 
(Par.  157,  ibid.) 


364 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


as  a  duplicate;  but  such  certificate  shall  not  be  accepted 
as  a  voucher  for  the  payment  of  any  claim  against  the 
United  States  for  pay,  bounty,  or  other  allowance,  or  as 
evidence  in  any  other  case.1 
Discharge  cer-     1034.  Tb  at  the  Secretary  of  War  and  the  Secretary  of 

tificates,  etc.,  in  ,  -,.-11 

tmc name.         the  Navy  be,  and  they  are  herebv,  authorized  and  required 

Apr.  14, 1890,  v.  ,  ,•/>  /> 

2G,p.55.  to  issue  certificates  of  discharge  or  orders  of  acceptance  of 

resignation,  upon  application  and  proof  of  identity,  in  the 
true  name  of  such  persons  as  enlisted  or  served  under 
assumed  names,  while  minors  or  otherwise,  in  tlie  Army 
and  Navy  during  the  war  of  the  rebellion,  and  were  hon- 
orably discharged  therefrom.  Applications  for  said  certifi- 
cates of  discharge  or  amended  orders  of  resignation  may 
be  made  by  or  on  behalf  of  persons  entitled  to  them;  but 
no  such  certificate  or  order  shall  be  issued  where  a  name 
was  assumed  to  cover  a  crime  or  to  avoid  its  consequence.1 
Act  of  April  14,  1890  (26  Stat.  L.,  55). 

ch?r°™rtoblbedre      1035.  ^n  a^  cases  where  it  has  become  necessary  for  any 
turned  to  officers  officer  or  enlisted  man  of  the  Army  to  file  his  evidence  of 

and  enlisted  men.  '  .  T_ 

May  4,   1870,  honorable  discharge  from  the  military  service  of  the  United 
p.1?74.  °  '  States  to  secure  the  settlement  of  his  accounts,  the  account- 

ing officer  with  whom  it  has  been  filed  shall,  upon  appli- 
cation by  said  officer  or  enlisted  man,  deliver  to  him  such 
evidence  of  honorable  discharge;  but  his  accounts  shall  first 
be  duly  settled,  and  the  fact,  date,  and  amount  of  such  settle- 
ment shall  be  clearly  written  across  the  face  of  such  evi- 
dence of  honorable  discharge,  and  attested  by  the  signature 
of  the  accounting  officer  before  it  is  delivered. 


DESERTION. 


Par. 

1036.  Desertion ;  penalty. 

1037.  Making  good  time  lost. 

1038.  Rights    of   citizenship    for- 

feited by  desertion. 

1039.  Certain  soldiers  and  sailors 

not  to  incur  forfeitures  of 
the  last  section. 

1040.  Avoiding  the  draft. 

1041.  Deserters    not    entitled    to 

bounty  land. 


!  Par. 

1042.  Deserters  not  to  be  enlisted 

in  military  service. 

1043.  Deserters  not  to  be  enlisted 

in  naval  service. 

1044.  Deposits  forfeited. 

1045.  Punishment  for  advising  or 

persuading  desertion. 

1046.  Enticing     desertions     from 

military  and  naval  serv- 


i  Discharge  certificates  will  not  be  made  in  duplicate.  Upon  satisfactory  proof  of 
the  loss  of  a  discharge,  or  of  its  destruction  without  the  fault  of  the  party  entitled 
to  it,  the  War  Department  may  issue  to  such  party  a  certificate  of  service,  showing 
date  of  enlistment  in  and  discharge  from  the  Army  and  character  given  on  discharge 
certificate.  Discharge  certificates  must  not  bo  forwarded  to  the  War  Department 
in  correspondence  unless  called  for.  (Par.  143,  A.  11.,  1895.) 

The  discharge  certificates  authorized  to  he  issued  under  the  provisions  of  these 
statutes  is  not  to  be  confounded  with  the  certificate  denominated  a  "  deserter's 
release,"  the  issue  of  which  is  authorized  in  certain  cases  by  G.  0. 55,  A.  G.  O.,  1890 
(26  Stat.  L.,  54).  See  note  to  paragraph  1068,  post. 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  365 

Par.  j    Par. 

1047.  Enlisting    in   another  regr     1051.  Absence  without  leave. 


ment. 
1048.  Who  may  arrest  deserters. 


1052-1065.  Removal  of  the  charge 
of  desertion. 


1049.  Arrest  of  deserters  by  civil  J  1066.  Statute  of  limitations  in  de- 


officers. 

1050.  Reward    for    apprehension 
limited  to  ten  dollars. 


sertion. 


1036.  Any  officer  or  soldier  who,  having  received  pay,  or  al^esertion ;  Pe 
having  been  duly  enlisted  in  the  service  of  the  United    47  Art.  war. 
States,  deserts  the  same,  shall,  in  time  of  war,  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct ; 
and  in  time  of  peace,  any  punishment,  excepting  death, 
which  a  court-martial  may  direct.1     Forty -seventh  Article 
of  War. 

'Desertion  is  au  unauthorized  absenting  of  himself  from  the  military  service  by  an 
officer  or  aokher  with  the  intention  of  not  returning.  In  other  •words,  it  is  the  vio- 
lation of  military  discipline  familiarly  known  as  absence  without  leave  (whether 
consisting  in  an  original  absenting  without  authority  or  in  an  overstaying  of  a 
defined  leave  of  absence),  accompanied  by  an  animus  remanendi,  or  non  revertendi, 
this  animus  constituting  the  gist  of  the  offense  In  order  to  establish  the  commis- 
sion of  the  specific  offense  both  these  elements- the  fact  of  the  unauthorized  vol- 
untary withdrawal  and  the  intent  permanently  to  abandon  the  service — must  be 
proved.  The  intent  may  be  inferred  not  indeed  from  the  fact  of  absenting  alone, 
but  from  the  circumstances  attending  this  fact  and  here  the  duration  of  the 
absence  is  especially  material  Thus  the  circumstance  that  the  absence  has  been 
exceptionally  protracted  and  quite  unexplained  will  in  general  furnish  a  presump- 
tion of  the  existence  of  the  necessary  intent.  An  unauthorized  absence,  however, 
of  a  few  hours,  terminated  by  a  forcible  apprehension,  may,  under  certain  situa- 
tions, be  sufficient  evidence  of  such  intent,  and  thus  proof  of  a  desertion  ;  while  an 
absence  for  a  considerable  interval,  unattended  by  circumstances  indicating  a  pur- 
pose to  separate  permanently  from  the  service,  or  to  dissolve  the  pending  engage- 
ment of  the  soldier,  may  be  proof  simply  of  the  minor  included  offense.  In  order  to 
determine  whether  or  not  the  officer  or  soldier  absented  himself  with  the  intent  not 
to  return  i.  e.,  whether  his  oll'enso  was  desertion  or  absence  without  leave,  all  the 
circumstances  connected  with  his  leaving,  absence,  and  return  (whether  compulsory 
or  voluntary)  must  be  considered  together.  Each  case  must  be  governed  by  its  own 
peculiar  facts,  and  no  general  rule  on  the  subject  can  be  laid  down.  (Dig.  J.  A. 
Gen.,  337.  par.  1.) 

Where  au  officer  left  his  post  on  a  three  days'  leave  of  absence  and  did  not  return 
to  duty  or  report  himself  at  the  proper  time,  but  absconded  to  Canada  with  a  large 
amount  of  Government  funds,  held,  on  his  being  arrested  some  months  subsequently 
in  the  United  States,  that  he  was  clearly  chargeable  with  the  offense  of  desertion. 
So  where  au  officer  having  been  guilty  of  sundry  embezzlements  and  frauds,  and 
become  involved  in  debt,  and  being  on  the  point  of  being  placed  in  arrest,  obtained, 
by  means  of  wholly  false  representations,  a,  brief  leave  of  absence  from  his  post 
for  the  expressed  purpose  of  visiting  a  certain  place  named,  and  was  subsequently 
apprehended  at  a  place  quite  other  and  much  more  distant  than  that  designated, 
and  while  rapidly  traveling  en  route  for  a  still  more  remote  locality;  held,  in  the 
absence  of  any  evidence  to  rebut  the  presumption  thus  raised,  that  ho  was  properly 
chargeable  with  having  absented  himself  with  the  animus  of  a  deserter.  (Ibid.,  338, 
par.  2.) 

No  man  will  be  reported  a  deserter  until  after  the  expiration  of  ten  days  (should 
he  remain  away  that  length  of  time),  unless  the  company  commander  has  conclusive 
evidence  of  the  absentee's  intention  not  to  return;  but  commanding  officers  will 
take  steps  to  apprehend  soldiers  absent  without  leave  as  soon  as  that  fact  is  reported. 
Should  the  soldier  not  return,  or  not  be  apprehended,  within  the  time  named,  his 
desertion  will  date  from  the  commencement  of  the  unauthorized  absence.  An 
absence  without  leave  of  less  than  one  day  will  not  be  noted  upon  the  muster  and 
pay  rolls.  (Par.  133,  A.  R.,  1895.) 

When  a  deserter  surrenders  or  is  delivered  at  a  military  post,  the  post  commander 
will  cause  immediate  inquiry  to  be  made  in  regard  to  datesof  enlistmentand  desertion, 
and  if  these  indicate  that  trial  is  barred  by  law,  and  the  deserter  claims  to  have  been 
within  the  limits  of  the  United  States  during  two  years  of  his  absence  in  desertion 
and  there  is  no  attainable  evidence  in  disproof  thereof,  will  require  him  to  file  an 
affidavit  asserting  his  claim,  will  immediately  set  him  at  liberty  with  instructions  to 
apply  by  letter  to  the  Adjutant- General  of  the  Army  for  a  "deserter's  release,"  and 
will  then  report  his  action  to  the  Adjutant-General  of  the  Army,  transmitting  with 
the  report  the  affidavit  above  mentioned.  (Par.  120,  ibid.) 

An  enlisted  man  apprehended  or  surrendering  as  a  deserter,  and  whose  trial  for 
desertion  is  not  barred  by  the  statute  of  limitations,  will  be  examined  by  a  medical 
officer  at  the  post  where  he  is  received,  and  a  report  of  this  examination  will  be  for- 
warded to  department  headquarters.  If,  on  account  of  disease,  age,  or  other  perma- 
nent disability,  the  man  is  found  unfit  for  service,  the  report,  with  the  department 
commander's  recommendation  thereon,  will  be  forwarded  to  the  Adjutant-General  of 


366  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


STATUTORY   PENALTIES    AND   FORFEITURES.1 

umeaioSg  go°d     10^7.  Every  soldier  who  deserts  the  service  of  the  United 
is  Art.' War.    states  shall  be  liable  to  serve  for  such  period  as  shall,  with 
the  time  he  may  have  served  previous  to  his  desertion, 
amount  to  the  full  term  of  his  enlistment;  and  such  soldier 
shall  be  tried  by  a  court-martial  and  punished,  although 
the  term  of  his  enlistment  may  have  elapsed  previous  to  his 
being  apprehended  and  tried.2  Forty-eighth  Article  of  War. 
1038'  A11  persons  who  deserted  the  military  or  naval 
by  desertion,  etc.  service  of  the  United  States  and  did  not  return  thereto  or 

Mar.  3,  1865,  c. 

lob8' 21>  v' 13'  p>  reP°r^  themselves  to  a  provost-marshal  within  sixty  days 
sec.  1996, R.S.  after  the  issuance  of  the  proclamation  by  the  President, 
dated  the  eleventh  day  of  March,  eighteen  hundred  and 
sixty- five,  are  deemed  to  have  voluntarily  relinquished  and 
forfeited  their  rights  of  citizenship,  as  well  as  their  right 
to  become  citizens;  and  such  deserters  shall  be  forever  in- 
capable of  holding  ,any  office  of  trust  or  profit  under  the 

the  Army.  If  the  examination  shows  that  the  man  is  fit  for  service,  the  department 
commander  will  bring  him  to  trial,  or  restore  him  to  duty  without  trial,  as  the  inter 
ests  of  the  Government  may  dictate.  (Par.  121,  ibid.) 

Deserters  will  be  brought  to  trial  with  the  least  practicable  delay.  While  await- 
ing trial  they  Avill  receive  no  pay,  and  will  be  required  to  wear  the  clothes  worn  at 
the  time  of  arrest,  unless  it  stiould  be  imperative  to  issue  other  clothing,  when,  as 
far  as  practicable,  only  deserters'  or  other  unserviceable  clothing  will  be  issued. 
(Par.  129,  ibid.) 

A  deserter  will  not  be  restored  to  duty  without  trial,  except  by  authority  compe 
tent  to  order  his  trial.  Such  restoration  does  not  remove  the  charge  of  desertion, 
nor  relieve  the  soldier  from  any  of  the  forfeitures  attached  to  that  ofiense.  He  must 
make  good  the  time  lost  by  desertion,  refund  the  reward  and  expenses  paid  for 
apprehension  and  delivery,  and  forfeit  pay  while  absent.  (Par.  132,  ibid.) 

'The  forfeiture  of  pay  and  allowances  prescribed  for  deserters  by  paragraphs  126. 
130,  and  132  of  the  Army  Regulations  can  be  imposed,  in  any  case,  only  upon  a  sat- 
isfactory ascertainment  of  the  fact  of  desertion.  The  same  may  indeed  legally  be 
enforced  in  the  absence  of  an  investigation  by  a  military  court,  as,  for  instance,  upon 
the  restoration  to  duty  without  trial,  by  the  order  of  competent  authority,  under 
paragraph  128  of  the  Army  Regulations,  of  a  deserter  as  such.  But  in  general,  in 
this  case  equally  as  in  that  of  the  statutory  liability,  the  forfeiture  can  safely  be 
applied  only  upon  the  trial  and  conviction  by  court-martial  of  the  alleged  deserter. 
The  conviction  must,  of  course,  be  duly  approved ;  if  it  be  disapproved,  the  soldier 
can  not  legally  be  subjected  to  the  forfeiture,  since  he  can  not  be  treated  as  a  deserter 
in  law.  Nor  can  he  be  subjected  to  the  forfeiture  if  he  is  acquitted,  though  the  find- 
ing be  disapproved  by  the  reviewing  authority.  A  removal,  in  orders  of  the  War 
Department,  of  a  charge  of  desertion  entered  by  mistake  upon  the  rolls  against  a 
soldier,  operates  to  relieve  him  of  any  and  all  stoppages  which  have  been  charged 
against  his  pay  account  for  forfeitures  authorized  by  the  Army  Regulations  in  cases 
of  deserters.  (Dig.  J.  A.  Gen.,  342,  par.  9.) 

A  deserter  can  not  legally  be  subjected  to  any  forfeiture  other  than  those  pre- 
scribed by  statute  or  army  regulation.  He  incurs,  for  example,  no  forfeiture  of  his 
own  personal  property.  So,  where  certain  property  left  by  a  deserter  in  his  quarters 
was  sold  by  the  authorities  of  the  post  with  intent  to  devote  the  proceeds  to  the 
post  fund,  held  that  such  proceeds,  upon  the  subsequent  arrest  of  the  deserter, 
should  bo  paid  over  to  him.  So  a  soldier,  by  reason  of  having  deserted,  does  not 
forfeit  bounty  money  which  has  been  paid  him  upon  enlistment  or  subsequently  or 
any  other  money  found  in  his  possession  upon  his  arrest.  And  such  money  can  not 
legally  be  withheld  from  him  to  be  appropriated  to  a  regimental  or  post  fund  or  any 
other  purpose,  but  being  his  own  personal  property,  unaffected  by  his  offense,  must 
be  left  in  his  possession.  (Ibid.,  343,  par.  10.) 

2  A  deserter  will  make  good  the  time  lost  by  desertion,  unless  discharged  by  com- 
petent authority.  He  will  be  considered  again  in  service  upon  his  return  to  military 
control;  but  if  a  deserter  enlists  while  in  desertion,  his  services  under  such  unlaw- 
ful enlistment  will  not  be  counted  as  making  good  any. of  the  time  lost  bv  desertion. 
(Par.  131,  A.  R.,  1895.) 

DISPOSITION  OF  EFFECTS  OF  DESERTERS. 

The  clothing  abandoned  by  a  deserter  will  be  turned  over  to  the  quartermaster 
with  a  certificate  from  the  company  or  detachment  commander  showing  its  condition 
and  the  name  of  the  deserter  to  whom  it  belonged.  All  other  personal  effects  of  a 
deserter  will  be  disposed  of  as  in  the  case  of  unclaimed  effects  of  deceased  soldiers. 
(Par.  130,  ibid.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  367 

United   States,  or  of  exercising  any   rights  of  citizens 
thereof.1 

1039.  No  soldier  or  sailor,  however,  who  faithfully  served  .  Certain  sol- 

diers and  sailors 

according  to  his  enlistment  until  the  nineteenth  dav  of  n°t  to  incur  the 

.     J         forfeitures  of  the 

April,  eighteen  hundred  and  sixty-five,  and  who,  without  last  section. 

*  .     .       a  .  ,   ,  .  ,      July  19,  1867,  c. 

proper  authority  or  leave  first  obtained,  quit  his  coalman*}  28,  7.  is,  p.  u. 
or  refused  to  serve  after  that  date,  shall  be  held  to  be  a 
deserter  from  the  Army  or  Navy  5  but  this  section  shall 
be  construed  solely  as  a  removal  of  any  disability  such 
soldier  or  sailor  may  have  incurred,  under  the  preceding 
section,  by  the  loss  of  citizenship  and  of  the  right  to  hold 
office,  in  consequence  of  his  desertion. 

1040.  Every  person  who  hereafter  deserts  the  military  or    Avoiding  the 
naval  service  of  the  United  States,  or  who,  being  duly  en-    Mar.  3,  ises,  c. 
rolled,  departs  the  jurisdiction  of  the  district  in  which  he  loo8'  2 

is  enrolled,  or  goes  beyond  the  limits  of  the  United  States,    Sec>  1998'  R>s* 
with  intent  to  avoid  any  draft  into  the  military  or  naval 
service,  lawfully  ordered,  shall  be  liable  to  all  the  penalties 
and  forfeitures  of  section  nineteen  hundred  and  ninety-  six. 

1041.  No  person  who  has  been  in  the  inilitarv  service  of   Deserters  not 

entitled    to 

the  United  States  shall,  in  any  case,  receive  a  bounty-land  Bounty  laud. 

Sept.  28,  1850,  c. 

warrant  if  it  appears  by  the  muster-rolls  of  his  regiment  85,s.i,v.  o,  p.  520  ; 
or  corps  that  he  deserted  or  was  dishonorably  discharged  207%.  i,  v.  id,p! 
from  service.  sec.  2438,  R.  s. 

1042.  No  minor  under  the  as'e  of  sixteen  vears,  no  insane    Deserters  not 

to  be  enlisted. 

or  intoxicated  person,  no  deserter  from  the  military  service  Mar.  2,  1333,  v. 
of  the  United  States,  and  no  Derson  who  has  been  con-isei,  v.  ia'p.sV: 

,      ,,    .  .T    .      ,  ,    .     ,  Mar.  3,  1865,  v.  13, 

victed  oi  a  ielony  shall  be  enlisted  or  mustered  into  the  p.  400  ;  Feb.  27, 

...  .  1877,  v.  19,  p.  242. 

military  service.  sec.ni8,R.s. 

1043.  No  minor  under  the  age  of  fourteen  years,  no  insane  "0*  Io 


or  intoxicated  person,  and  no  deserter  from  the  naval  or  i^^'fw^^M&j 
military  service  of  the  United  States  shall  be  enlisted  in  J2-  j,87.9'  I-  21,  p. 

OJ    Ju  GU.    &Oy    lool} 

the  naval  service.  Ti£&J8u  s. 

1044.  Any  enlisted  man  of  the  Army  may  deposit  his    Deposits  for- 
savings,  in  sums  not  less  than  five  dollars,  with  any  Army    May  15,  i872,c. 
paymaster,  who  shall  furnish  him  a  deposit-book,  in  which  117! 
shall  be  entered  the  name  of  the  paymaster  and  of  the 
soldier,  and  the  amount,  date,  and  place  of  such  deposit. 
The  money  so  deposited  shall  be  accounted  for  in  the  same 
manner  as  other  public  funds,  and  shall  pass  to  the  credit 

"The  forfeiture  of  the  rights  of  citizenship,  and  the  incapacity  to  hold  office  under 
the  United  States,  imposed  upon  deserters  by  the  act  of  March  3,  1865  (sees.  1996, 
1998,  R.  S.),  can  be  incurred  only  upon  and  as  incident  to  a  conviction  of  desertion  by 
a  general  court-martial,  duly  approved  by  competent  authority.  These  disabilities, 
though  attaching  to  every  .such  conviction,  may  be  removed  by  an  Executive  pardon 
of  the  offender.  (Dig.  J.  A  .  Gen..  342,  par.  8.) 

Such  is  believed  to  have  been  the  uniform  course  of  ruling  in  the  civil  courts.  See 
State  v.  Symonds,  57  Maine,  148,  Holt  v.  Holt.  59  ibid.,  464;  Severance  v.  Healy,  50  1ST. 
Hamp.,  448;  Gotcheus  v.  Matthewson,  61  1ST.  Y.,  420,  (and  5  Lansing,  214;  58  Barb., 
152);  Hnber  v.  Reilly,  53  Pa.  St.,  112;  McCaflerty  v.  Guyer,  59  ibid.,  110;  Kurtz  v. 
Moffitt,  115  U.S.,  501. 


368      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

of  the  appropriation  for  the  pay  of  the  Army,  and  shall 
not  be  subject  to  forfeiture  by  sentence  of  court-martial, 
but  shall  be  forfeited  by  desertion,  and  shall  not  be  per- 
mitted to  be  paid  until  final  payment  on  discharge,  or  to 
the  heirs  or  representatives  of  a  deceased  soldier,  and  that 
such  deposit  be  exempt  from  liability  for  such  soldier's 
debts:  Provided,  That  the  Government  shall  be  liable  for 
the  amount  deposited  to  the  person  so  depositing-  the  same. 
ad^ngTrnperr     1045.  Any  officer  or  soldier  who  advises  or  persuades  any 
shading  deser-  other  officer  or  soldier  to  desert  the  service  of  the  United 
si  Art.  War.    States,  shall,  in  time  of  war,  suffer  death,  or  such  other 
punishment  as  a  court-martial  may  direct:  and  in  time  of 
peace,  any  punishment,  excepting  death,  which  a  court- 
martial  may  direct.    Fifty-first  Article  of  War. 

tio^sticfromdethe     1046.  Every  person  who  entices  or  procures,  or  attempts 

^mtary  or  naval  or  endeavors  to  entice  or  procure,  any  soldier  in  the  inili- 

Mar.3,  1863,  c.  tary  service  of  the  United  States,  or  who  has  been  recruited 

75   8  °4   v   12   p 

735;  July  i,i864,' for  such  service,  to  desert  therefrom,  or  who  aids  any  such 
Fe2b?'27,13i87734v!  soldier  in  deserting  or  attempting  to  desert  from  such  serv- 
19Sec?5455  R.S.  ice?  or  who  harbors,  conceals,  protects,  or  assists  any  such 
soldier  who  may  have  deserted  from  such  service,  knowing 
him  to  have  deserted  therefrom,  or  who  refuses  to  give 
up  and  deliver  such  soldier  on  the  demand  of  any  officer 
authorized  to  receive  him,  shall  be  punished  by  imprison 
ment  not  less  than  six  months  nor  more  than  two  years, 
and  by  a  fine  not  exceeding  five  hundred  dollars  j  and  every 
person  who  entices  or  procures,  or  attempts  or  endeavors  to 
entice  or  procure,  any  seaman  or  other  person  in  the  naval 
service  of  the  United  States,  or  who  has  been  recruited  for 
such  service,  to  desert  therefrom,  or  who  aids  any  such  sea- 
man or  other  person  in  deserting  or  in  attempting  to  desert 
from  such  service,  or  who  harbors,  conceals,  protects,  or 
assists  any  such  seaman  or  other  person  who  may  have 
deserted  from  such  service,  knowing  him  to  have  deserted 
therefrom,  or  who  refuses  to  give  up  and  deliver  such  sailor 
or  other  person  on  the  demand  of  any  officer  authorized  to 
receive  him,  shall  be  punished  by  imprisonment  not  less 
than  six  months  nor  more  than  three  years,  and  by  a  fine 
of  not  more  than  two  thousand  dollars,  to  be  enforced  in 
any  court  of  the  United  States  having  jurisdiction.1 
Enlisting  in  1047.  ]S"o  non-commissioned  officer  or  soldier  shall  enlist 

another  regi- 

mlotirt3'war  nimse^  ^n  any  °^her  regiment,  troop,  or  company,  without 
a  regular  discharge  from  the  regiment,  troop,  or  company 
in  which  he  last  served,  on  a  penalty  of  being  reputed  a 
deserter,  and  suffering  accordingly.  And  in  case  any 

1  Where  a  civil  official,  having  made  an  arrest  of  a  deserter,  concealed  him  from 
the  military  authorities,  and  afterwards  permitted  or  connived  at  his  escape,  recom 
mended  that  the  Attorney-General  be  requested  to  instruct  the  proper  United  States 
district  attorney  to  initiate  proceedings  under  section  5455,  Revised  Statutes.  (Dig. 
Qpiii.  J.  A,  Gen.,  345,  par.  17.) 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  369 

officer  shall  knowingly  receive  and  entertain  such  noncom- 
missioned officer  or  soldier,  or  shall  not,  after  his  being 
discovered  to  be  a  deserter,  immediately  confine  him  and 
give  notice  thereof  to  the  corps  in  which  he  last  served, 
the  said  officer  shall,  by  a  court-martial,  be  cashiered. 
Fiftieth  Article  of  War. 

APPREHENSION  OF  DESERTERS. 

1048.  That  United  States  marshals  and  their  deputies,    who  may  ar- 
sheriffs  and  their  deputies,  constables,  and  police  officers  resec.7,ejuene'i6, 
of  towns  and  cities  are  hereby  authorized  to  apprehend,  1890'v'26ll>t157' 
arrest,  and  receive  the  surrender  of  any  deserter  from  the 
Army  for  the  purpose  of  delivering  him  to  any  person  in 
the  military  service  authorized  to  receive  him. l     Sec.  3,  act 
of  June  16,  1890  (26  Stat.  L.,  157}. 

1  A  reward  of  $10  will  be  paid  to  any  civil  officer  having  the  proper  authority  for 
the  apprehension  and  delivery  to  the  proper  military  authorities  at  a  military  sta- 
tion (or  at  some  convenient  point  as  near  thereto  as  can  bo  agreed  upon)  of  any 
deserter  from  the  military  service,  except  such  as  can  claim  exemption  from  trial 
under  the  .statute  of  limitations.  This  reward  will  bo  paid  by  the  Quartermaster's 
Department  and  will  be  in  full  satisfaction  of  all  expenses  for  arresting,  keeping, 
and  delivering  the  deserter.  The  payment  will  be  reported  to  the  commander  of 
the  company  or  detachment  to  which  the  deserter  belongs.  (Par.  124,  A.  R.,  1895.) 

Rewards  or  expenses  paid  for  apprehending  a  deserter,  and  the  expenses  incurred 
in  transporting  him  from  point  of  apprehension,  delivery,  or  surrender  to  the  sta- 
tion of  his  company  or  detachment,  or  to  the  place  of  his  trial,  including  the  cost  of 
transportation  of  the  guard  will  be  set  against  his  pay  upon  conviction  of  desertion 
by  a  court-martial,  or  upon  his  restoration  to  duty  without  trial.  A  soldier  con- 
victed by  a  court  martial  of  absence  without  leave  will  be  charged  with  the  expense 
incurred  in  transporting  him  to  his  proper  station.  The  transportation  and  subsist- 
ence of  witnesses  will  not  be  charged  against  a  deserter.  (Par.  126,  ibid.) 

If  a  soldier  be  brought  to  trial  under  a  charge  of  desertion  and  acquitted,  or  con- 
victed of  absence  without  leave  only,  or  if  the  sentence  be  disapproved  by  proper 
authority,  any  amount  paid  as  a  reward  for  his  arrest  will  not  be  stopped  against 
his  pay  unless,  in  case  of  conviction  of  absence  without  leave,  the  sentence  of  the 
court  shall  so  direct.  (Par.  127,  ibid.) 

The  reward  of  $10,  made  payable  by  paragraph  124,  Army  Regulations,  is  not  due 
merely  on  the  apprehension  of  a  deserter;  ho  must  also  be  delivered  "to  an  officer  of 
the  army  at  the  most  convenient  post  or  recruiting  station."  (a)  The  fact  of  the  offer 
of  a  reward  for  the  arrest  of  a  deserter  does  not  authorize  a  breach  of  the  peace  or 
commission  of  an  illegal  act  in  making  the  arrest,  (b)  (Dig.  J.  A.  Gen.,  p.  343,  par.  12.) 

The  amount  of  the  reward — to  cite  from  Gr.  O.  325  of  1863— is  in  full  "  for  all  expenses 
incurred  in  apprehending,  securing,  and  delivering  a  deserter.'  Disbursements 
made  by  a  civilian,  where  no  arrest  is  effected,  are  at  his  own  risk,  and  can  not 
legally  be  reimbursed  by  the  military  authorities.  (Ibid.,  p.  344,  par.  13.) 

The  legal  liability  imposed  upon  the  soldier  by  paragraph  126,  Army  Regulations, 
to  have  the  amount  of  the  reward  stopped  against  his  pay,  is  quite  independent  of 
the  punishment  which  may  be  imposed  upon  him  by  sentence  of  court-martial  on 
conviction  of  the  desertion.  Such  stoppage  is  incident  upon  the  conviction,  and  need 
not  be  directed  in  the  sentence ;  courts-martial  indeed  have  sometimes  assumed  to 
impose  it,  like  an  ordinary  forfeiture  of  pay,  but  its  insertion  in  the  sentence  adds 
nothing  to  its  legal  effect.'  (Ibid  ,  p.  344,  par.  14.) 

Where  a  soldier,  charged  with  desertion,  is  acquitted,  or  where,  if  convicted,  his 
conviction  is  disapproved  by  the  competent  reviewing  authority,  he  can  not  legally 
be  made  liable  for  the  amount  of  a  reward  paid  or  payable  for  his  arrest  as  a  deserter, 
since  in  such  cases  he  is  not  a  deserter  in  law.  (Ibid.,  p.  344,  par.  15.) 


Where  a  soldier  for  whose  apprehension  as  a  supposed  deserter  the  reward  of  $30 
3  subsequently  brought  to  trial  upon  a  charge  of  de 


has  been  paid,  is  subsequently  brought  to  trial  upon  a  charge  of  desertion,  and  is 


a  The  actual  payment  of  the  compensation  iu  such  cases  is  authorized  by  the  an- 
nual army  appropriation  acts,  which,  in  appropriating  for  the  incidental  expenses 
of  the  Quartermaster  Department,  include  as  an  item — "for  the  apprehension, 
securing,  and  delivering  of  deserters,  and  the  expenses  incident  to  their  pursuit." 
The  acts  of  August  G,  1894,  and  February  12,  1895,  contain  the  requirement  that  the 
sum  paid  shall  not  be  greater  than  $10. 

bSee,  in  this  connection,  Clay  v.  U.  S.,  Deyereux,  25,  in  which  an  officer,  who, 
under  orders  of  a  superior,  had,  without  previously  procuring  proper  authority  to 
enter  and  search  from  a  civil  magistrate,  broken  into  a  dwelling  house  for  the  pur- 
pose of  fee  mug  the  arrest  of  certain  deserters,  was  held  to  have  committed  an  un- 
justifiable trespass,  and  his  claim  to  be  reimbursed  by  the  United  States  for  the 
amount  of  a  judgment  recovered  against  him  on  account  of  his  illegal  act  was  disal- 
lowed by  the  Court  of  Claims. 

1919 24 


370  THE    MILITARY    LAWS    OP    THE    UNITED    STATES. 

^  Arrest,  etc..  of     1049.  That  it  sliall  be  lawful  for  any  civil  officer  having 
officers.  authority  under  the  laws  of  the  United  States  or  of  any 

isuo.v.  26,  p.  648.' State,  Territory,  or  District,  to  arrest  offenders,  to  suin- 
inarily  arrest  a  deserter  from  the  military  service  of  the 
United  States  and  deliver  him  into  the  custody  of  the  mili- 
tary authority  of  the  General  Government.  Sec.  2,  act  of 
October  1,  1890  (26  Stat.  L.,  648}. 

found  guilty  not  of  desertion  but  only  of  the  lesser  and  distinct  offense  of  absence 
without  leave,  he  clearly  can  not  legally  be  held  liable  for  the  reward  by  a  stoppage 
of  the  amount  against  his  pay.  In  such  a  case,  the  instrumentality  resorted  to  by 
the  United  States  for  determining  the  nature  of  his  offense — the  court  martial— 
'  having  pronounced  that  it  was  not  desertion,  the  Government  is  bound  by  the  result, 

and  to  visit  upon  him  a  penalty  to  which  a  deserter  only  can  be  subject,  would  be 
grossly  arbitrary  and  wholly  unauthorized.  MoreoA'er,  such  action  Avould  be  directly 
at  variance  with  the  terms  of  paragraph  124  of  the  Army  Regulations,  which  fixes 
such  liability  upon  the  soldiertried,  in  the  eventonly  of  his  conviction  of  desertion,  (a) 
unless  indeed  the  sentence  of  the  court  expressly  forfeits  the  amount  (b).  (Ibid., 
par.  16.) 

PAYMENT  OF  REWARDS. 

To  entitle  a  person  (under  paragraph  124,  Army  Regulations  of  1895)  to  the  reward 
for  the  arrest  of  a  deserter,  the  party  arrested  must  be  still  a  soldier.  Though,  at  the 
time  of  the  arrest,  the  period  of  his  term  of  enlistment  may  have  expired,  or  he  may 
be  tinder  sentence  of  dishonorable  discharge,  yet  if  ho  has  not  been  discharged  in 
fact,  the  official  duly  making  the  arrest,  etc.,  on  account  of  a  desertion  committed 
before  the  end  of  his  term,  becomes  entitled  to  the  payment  of  the  reward  specified 
in  the  regulations.  Similarly  held,  where  the  soldier,  arrested  when  at  large  as  a 
deserter,  had  been  sentenced  to  confinement  (without  discharge),  and  had  escaped 
therefrom .  (Ibid . ,  346,  par.  26. ) 

The  soldier  arrested  must  be  a  deserter  and  legally  liable  as  such.  If  he  has  been 
judicially  determined  to  bo  not  a  deserter,  as  where  he  has  been  convicted  of  absence 
without'leave  only  (see  paragraph  126,  Army  Regulations) ;  or,  if  in  view  of  the 
limitation  of  the  one  hundred  and  third  article,  ho  has  a  legal  defense  to  a  prosecu- 
tion for  desertion  (General  Orders  22  of  1893) — the  reward  is  not  payable  for  his  ap- 
prehension. (Ibid.,  347,  par.  27.  See,  also,  par.  127,  A.  R.,  1895.) 

Where  the  soldier  when  arrested  had  been  absent  but  three  days,  and  was  still  in 
uniform,  and  had  not  been  reported  or  dropped  as  a  deserter,  and  his  company  com- 
mander had  not  the  "  conclusive  evidence  "  of  his  "intention  not  to  return,"  referred 
to  in  paragraph  133,  Army  Regulations,  held  that  there  was  not  sufficient  evidence 
that  he  was  a  deserter  to  justify  the  payment  of  the  reward  for  his  arrest  and  deliv- 
ery. (Ibid  ,  par.  28.) 

Thearrestmade  must  bo  a  legal  one.  Thus  held  that  the  reward  was  not  payable 
for  an  arrest  made  on  the  soil  of  Mexico,  involving  a  violation  of  the  territorial 
rights  of  that  sovereignty.  An  act  done  in  violation  of  law  can  not  be  the  basis  of 
a  legal  claim.  (Ibid.,  par.  29.) 

Where  the  deserter  was  not  arrested  by,  but  surrendered  himself  to,  the  civil 
official,  who  in  good  faith  took  him  into  custody  and  securely  held  and  duly  deliv- 
ered him — advised  that  there  had  been  a  substantial  apprehension  and  that  the 
reward  was  properly  payable.  [See  Circular  No.  1  (II.  A.) ,  1886.]  (Ibid.,  par.  30.) 

The  delivery  should  be  personal  and  manual  on  the  part  of  the  civil  official.  Where 
a  soldier  who  had  deserted  was  sentenced  to  a  penitentiary  as  ahorse  thief,  and  at 
the  end  of  his  term  of  imprisonment  a  United  States  marshal  caused  information 
that  he  was  a  deserter  to  be  conveyed  to  the  commander  of  a  neighboring  military 
post,  who  thereupon  had  him  arrested  and  brought  to  the  post,  held  that  the  marshal 
was  not  entitled  to  claim  the  reward.  (Ibid.,  par.  31. ) 

So,  where  a  civil  official  merely  informed  a  captain  of  artillery  that  two  soldici-s 
serving  in  his  battery  were  deserters  from  the  battalion  of  engineers,  held  that, 
though  such  information  was  correct,  the  official  was  not  entitled  to  the  reward; 
and  that  the  amount  of  the  same,  which  had  been  erroneously  paid  him  on  the  cer- 
tificate of  the  captain,  should  be  charged  against  the  latter  under  paragraph  654, 
Army  Regulations,  1895.  (Ibid.,  par.  32.) 

The  reward  should  be  withheld  where  there  is  evidence  of  collusion  between  the 
alleged  deserter  and  the  civil  official.  Advised  that  a  suspicion  of  such  collusion 
was  properly  entertained  in  a  case  where  the  soldier,  after  an  absence  of  but  a  few 
days,  voluntarily  surrendered  himself,  at  or  near  the  post  of  delivery,  to  a  policeman. 
who  turned  him  over,  without  expense  or  difficulty,  to  the  military  authorities  who 
did  not  treat  him  as  a  deserter  but  caused  him  to  bo  charged,  tried,  and  convicted  as 
an  absentee  without  leave  only.  (Ibid.,  p.  348,  par.  33.) 

An  officer  of  the  customs,  empowered  by  law  to  make  arrests  of  persons  violating 
the  revenue  laws,  but  having  no  such  general  authority  as  is  ordinarily  possessed 
by  peace  officers  "to  arrest  offenders"  (according  to  the  terms  of  the  act  of  October 
1,  1890,  authorizing  certain  civil  officials  to  arrest  deserters)— held  not  entitled  to 
be  paid  the  regulation  reward  for  the  apprehension,  etc.,  of  a  deserter  from  the 
Army.  (Ibid.,  par.  34.) 

Held  that  a  justice  of  the  peace  of  Idaho  was  not,  by  the  laws  of  that  State,  a 
peace  officer  or  authorized  to  arrest  offenders,  and  was  therefore  not.  within  the 
terms  of  the  act  of  October],  1890,  or  legally  entitled  to  bo  paid  the  reward  for  the 
airestxetc.,  of  a  deserter.  Such  justice  may  by  his  warrant  authorize  and  thus 


a  16  Opin.  Att.  Gen.,  474.  fcSee  G.  O.  2,  A.  G.  O.,  1890. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  371 

1050.  For  the  apprehension,  securing,  and  delivering  of   Reward  for  ap- 

prehension    lira- 

deserters,  and  the  expenses  incident  to  their  pursuit,  and  fa*  to  ten  doi- 
no  greater  sum  than  ten  dollars  for  each  deserter  shall  be^Mar.ie. 
paid  to   any  officer  or  citizen  for  such  services  and  ex- 
penses.1    Act  of  March  16,  1896  (29  Stat.  //.,  65). 

ABSENCE  WITHOUT  LEAVE. 

1051.  Any  soldier  who  absents  himself  from  his  troop,    f f8°°® 
battery,  company,  or  detachment,  without  leave  from  his    32  Art.'war 
commanding  officer,  shall  be  punished  as  a  court  martial 

may  direct.2     Thirty -second  Article  of  War. 

cause  arrests,  but  actual  arrest  pertains,  under  the  laws  of  the  State,  to  another 
class — sheriff's,  constables,  city  marshals,  and  policemen.  Similarly  held  in  regard 
to  an  Indian  who  brought  in  a  deserter  to  a  military  post  in  North  'Dakota,  he  hav- 
ing no  authority  under  the  laws  of  that  State  to  make  arrests.  But  held  that  a 
member  of  the  Indian  police,  established  under  the  regulations  of  the  Indian  Office, 
was  a  civil  officer  having  authority  to  arrest  offenders,  and  was  entitled  to  the  re- 
ward for  the  arrest  of  a  deserter.  (Ibid.,  par.  35.) 

Circular  No.  11  (H.  A.),  1883,  declares  that  the  reward  shall  not  be  paid  where  the 
deserter,  at  the  time  of  arrest,  "is  serving  in  some  other  branch  of  the  Army,"  etc. 
Thus  held  that  the  reward  was  not  payable  for  the  arrest  of  a  deserter  from  the 
cavalry,  who.  subsequently  to  his  desertion,  had  enlisted  in  an  infantry  regiment  in 
which  he  was  serving  at  the  date  of  the  arrest.  (Ibid.,  par.  36.) 

Where  a  civil  official,  in  good  faith  and  in  compliance  Avith  military  instructions, 
made  the  arrest  and  delivery  of  a  deserter,  who,  however,  was  of  the  class  of  de- 
serters specified  in  General  Orders  22  of  1893,  viz,  those  who  "would  have  the  right 
to  claim  exemption  from  trial  and  punishment"  under  the  present  one  hundred  and 
third  article  of  war— a  fact  not  within  the  knowledge  of  the  official  and  which  he 
could  not  have  ascertained,  but  who  therefore  had  no  legal  claim  for  the  payment  of 
the  reward— held  that  the  reasonable  expenses  of  such  official  incurred  in  the  arrest, 
etc.,  might  well  be  allowed  by  the  Secretary  of  War  out  of  the  appropriation  for  the 
contingent  expenses  of  the  Army.  But  the  civil  official  takes  the  risk  of  the  soldier 
being  or  not  being  an  actual  deserter.  If  he  turns  out  to  be  not  one,  the  official  loses 
his  time  and  disbursements,  if  any.  Thus  held  that  such  official  could  have  no  claim 
to  be  reimbursed  his  expenses  incurred  in  making,  in  good  faith,  the  arrest  of  a  sup- 
posed deserter  who  was  in  fact  a  dishonorably  discharged  soldier.  (Ibid.,  par.  37.) 

A  deserter  is  not  chargeable,  under  paragraph  124,  Army  Regulations,  with  the 
expenses  of  transportation  therein  specified,  if  his  conviction  has  been  duly  disap- 
proved ;  such  disapproval  being  tantamount  to  an  acquittal.  (Ibid.,  p.  349,  par  38  ) 

The  expense  of  the  transportation  of  a  convicted  deserter,  incurred  in  the  course  of 
the  execution  of  his  sentence,  is  not  chargeable  against  the  deserter  under  paragraph 
126,  Army  Regulations  of  1895,  but  must  be  borne  by  the  United  States.  (Ibid., 
par.  37.) 

The  act  of  August  6.  1894  (28  Stat.  L.,  239),  having  limited  to  $10  the  amount  to  be 
paid  for  the  services  and  expenses  of  an  officer  or  citizen  in  arresting  a  deserter  from 
the  Army,  no  greater  amount  can  be  paid  after  that  date,  notwithstanding  an  otter 
of  a  reward  of  $00  in  1893,  under  then  existing  laws,  and  an  arrest  under  such  otter 
in  November,  1894 ;  nor  can  any  expenses  incurred  prior  to  August  6, 1894,  be  allowed 
in  addition  to  said  sum  of  $10.  (1  Compt.  Dec.,  103.) 

1  The  acts  of  August  6,  1894  (28  Stat.  L.,  239),  and  February  12,  1895  (ibid.,  659), 
contain  the  same  provision. 

5  Absence  without  leave  may  consist  in  an  act  of  omission  as  well  as  in  one  of  com- 
mission. Where  an  officer  detailed  to  command  an  escort  of  prisoners  and  to  deliver 
them  at  a  certain  place,  neglected,  upon  this  service  being  performed,  to  return  with 
reasonable  diligence  to  his  proper  station,  held  that  he  was  chargeable  with  absence 
without  leave,  it  being  the  duty  of  an  officer  to  return  promptly  from  such  a  service 
without  further  orders  (a) .  (Dig.  J.  A.  Gen.,  p.  140,  par.  1.) 

Where  an  officer  or  soldier,  on  returning  to  his  station  after  an  unauthorized 
absence,  is  placed  upon  or  allowed  to  perform  full  duty  by  his  proper  commander, 
such  action,  by  the  custom  of  the  service,  operates  in  general  as  a  waiver  of  the 
charge  of  absence  without  leave,  and  may  ordinarily  be  pleaded  as  a  good  defense  in 
the  event  of  a  trial.  (Ibid.,  par.  2.) 

An  enlisted  man  who  has  absented  himself  from  his  post  or  company  without 
authority  is  subjected  to  the  forfeiture  of  pay  and  allowances  prescribed  by  para- 
graph 133,  Army  Regulations,  1895,  although  not  brought  to  trial  for  his  absence  as 
an  offense.  The  forfeiture  is  a  stoppage  by  operation  of  law  irrespective  of  any 
punishment  that  may  be  imposed,  and  whether  any  be  imposed  or  not.  Thus  a 
soldier  acquitted  under  a  charge  of  desertion  is  acquitted  of  the  absence  without 
leave  involved  in  the  charge,  and  can  not  be  punished  therefor;  but  if  he  has  been 
absent  without  leave  in  fact,  he  incurs  the  forfeiture  specified  in  the  regulation. 
And  a  soldier  brought  to  trial  for,  and  convicted  of,  an  absence  without  leave,  is 
subject  to  the  forfeiture,  though  none  be  adjudged  in  the  sentence.  Otherwise, 
however,  if  the  findings  be  disapproved  as  not  sustained  by  the  testimony.  [But 

a  See,  as  to  the  general  rule  on  this  subject,  General  Orders  82,  Headquarters  of 
Army,  1866;  also  paragraph  133,  Army  Regulations  of  1895. 


372  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


REMOVAL   OF   THE    CHARGE   OF   DESERTION. 

desert?oen  r°f     ^^-  That  the  charge  of  desertion  now  standing  on  the 
moved  from  rec-  rolls  and  records  ill  the  office  of  the  Adjutant  General  of 

ord     of    certain  .  ,  * .  ,  ..   . 

volunteers.  the  United  States  Army  against  any  soldier  who  served  in 
i889,Cv. 25,  Pa W  the  late  war  in  the  volunteer  service  shall  be  removed 
in  all  cases  where  it  shall  be  made  to  appear  to  the  satisfac- 
tion of  the  Secretary  of  War,  from  such  rolls  and  records, 
or  from  other  satisfactory  testimony,  that  such  soldier 
served  faithfully  until  the  expiration  of  his  term  of  enlist- 
ment, or  until  the  first  day  of  May,  anno  domini  eighteen 
hundred  and  sixty  five,  having  previously  served  six 
months  or  more,  and,  by  reason  of  absence  from  his  com- 
mand at  the  time  the  same  was  mustered  out,  failed  to  be 
mustered  out  and  to  receive  an  honorable  discharge,  or 
that  such  soldier  absented  himself  from  his  command,  or 
from  hospital  while  suffering  from  wounds,  injuries,  or  dis- 
ease received  or  contracted  in  the  line  of  duty  and  was 
prevented  from  completing  his  term  of  enlistment  by  reason 
of  such  wounds,  injuries,  or  disease.1  Act  of  March  2, 1889 
(25  Stat.  L.,  869}. 

1053'  That  tne  Secretary  of  War  is  hereby  authorized  to 
remove  the  charge  of  desertion  from  the  record  of  any 
regular  or  volunteer  soldier  in  the  late  war  upon  proper 
application  therefor,  and  satisfactory  proof  in  the  follow- 
ing cases : 
Retumtoduty.  pirgt  That  guch  soldier?  after  such  charge  of  desertion 

was  made,  and  within  a  reasonable  time  thereafter,  volun- 
tarily returned  to  his  command  and  served  faithfully  to 
the  end  of  his  term  of  service,  or  until  discharged. 

Second,  That  such  soldier  absented  himself  from  his  com- 
mand or  from  hospital  while  suffering  from  wounds,  injuries, 
or  disease,  received  or  contracted  in  the  line  of  duty,  and 
upon  recovery  voluntarily  returned  to  his  command  and 
served  faithfully  thereafter,  or  died  from  such  wounds, 
injuries,  or  disease  while  so  absent,  and  before  the  date 
of  muster  out  of  his  command,  or  expiration  of  his  term 
of  service,  or  was  prevented  from  so  returning  by  reason  of 

the  stoppage  incurred  under  paragraph  133,  Army  Regulations,  is  enforced  only  upon 
acouviction  by  court-martial.  (Ibid,  par.  3.) 

The  forfeiture  specified  in  paragraph  133,  Army  Regulations,  should  not  be  enforced 
for  absences  of  less  than  one  day,  but  the  soldier  should  be  left  to  be  punished  by 
sentence  of  summary  court.  Thus  where  the  unauthorized  absence  was  for  but 
seven  and  a.  half  hours,  a  forfeiture  of  a  day's  pay  would  deprive  the  soldier  of  pay 
for  sixteen  and  a  half  hours  which -he  had  actually  earned.  Reid,  therefore,  that  a 
stoppage  of  one  day's  pay  in  such  a  case  was  not  warranted.  (Ibid.,  par.  4.) 

When;  a  soldier  is  reported  by  the  War  Department  as  absent  with  out  leave  from 
a  certain  date,  and  in  subsequently  restored  to  duty,  the  date  of  his  return  not  being 
known,  an  approximate  date,  determined  from  the  facts  in  the  case,  may  be  assumed 
as  the  date  of  his  return.  (3  Dig.  Compt.  Dec.,  9.) 

1  This  statute  replaces  the  acts  of  Au-nist  7,  1882  (22  Stat.  L.,  347),  July  5,  1884  i23 
Stat.  L.,  119),  and  May  17,  1886  (24  Stat.  L.,  51),  in  pari  materia,  and  includes  all  the 
classes,  with  some  additions,  mentioned  in  these  enactments. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES  373 

such  wounds,  injuries,  or  diseases  before  sucli  muster  out, 
or -expiration  of  service. 

Third.  That  such  soldier  was  a  minor,  and  was  en  listed  Cii5frgea  by  <£der 
without  the  consent  of  his  parent  or  guardian,  and  was of^J." J'tWd. 
released  or  discharged  from  such  service  by  the  order  or  26Mpar8224 1891>  v' 
decree  of  any  State  or  United  States  court  on   habeas 
corpus  or  other  judicial  proceedings;   and  in  such  case, 
such  soldier  shall  not  be  entitled  to  any  bounty  or  allow- 
ance, or  pay  for  any  time  such  soldier  was  not  in  the 
performance  of  military  duty.    Sec.  2,  ibid.    Amended  by  act 
of  March  2,  1891  (26  Stat.  L.,  824). 

1054.  That  the  charge  of  desertion  now  standing  on  the  f 
rolls  and  records  in  the  office  of  the  Adjutant  General  of  di 
the  Army  against  any  regular  or  volunteer  soldier  who 
served  in  the  late  war  of  the  rebellion  by  reason  of  his  hav- 
ing enlisted  in  any  regiment,  troop,  or  company,  or  in  the 
United  States  Navy  or  Marine  Corps,  without  having  first 
received  a  discharge  from  the  regiment,  troop,  or  company 
in  which  he  had  previously  served,  shall  be  removed  in  all 
cases  wherein  it  shall  be  made  to  appear  to  the  satisfaction 
of  the  Secretary  of  War,  from  such  rolls  and  records,  or 
from  other  satisfactory  testimony,  that  such  re-enlistment 
was  not  made  for  the  purpose  of  securing  bounty  or  other 
gratuity  that  he  would  not  have  been  entitled  to,  had  he 
remained  under  his  original  term  of  enlistment;  that  the 
absence  from  the  service  did  not  exceed  four  months,  and    Llimtatlon- 
that  such  soldier  served  faithfully  under  his  re-enlistment. 

Sec.  3,  ibid. 

1055.  That  whenever  it  shall  appear  from  the  official  rec- 

ords  in  the  office  of  the  Adjutant  General,  United  States  etsec< 4) ibid. 
Army,  that  any  regular  or  volunteer  soldier  of  the  late 
war  was  formally  restored  to  duty  from  desertion  by  the 
Commander  competent  to  order  his  trial  for  the  offense,  or, 
having  deserted  and  being  charged  with  desertion,  was, 
on  return  to  the  service,  suffered,  without  such  formal 
restoration,  to  resume  his  place  in  the  ranks  of  his  com- 
mand, serving  faithfully  thereafter  until  the  expiration  of 
his  term,  such  soldier  shall  not  be  deemed  to  rest  under 
any  disability  because  of  such  desertion  in  the  prosecution 
of  any  claim  for  pension,  on  account  of  disease  contracted, 
or  wounds  or  injuries  received  in  the  line  of  his  duty  as  a 
soldier.  Sec.  4,  ibid. 

1056.  That  when  the  charge  of  desertion  shall  be  re-  typay aml  boun- 
moved  under  the  provisions  of  this  act  from  the  record  of   sec.  5,  MM. 
any  soldier,  such  soldier,  or,  in  case  of  his  death,  the  heirs 

or  legal  representatives  of  such  soldier,  shall  receive  the 
pay  and  bounty  due  to  such  soldier.     Sec.  5,  ibid. 


374  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Not  entitled  to     1057.  That  this  act  shall  not  be  so  construed  as  to  give 

pay,  etc.,  while 

absent  without  to  any  such  soldier,  or,  in  case  of  his  death,  to  the  heirs  or 
legal  representatives  of  any  such  soldier,  any  pay,  bounty, 
or  allowance  for  any  time  during  which  such  soldier  was  ab- 
sent from  his  command  without  proper  authority,  nor  shall 
it  be  so  construed  as  to  give  any  pay,  bounty,  or  allow- 
ance to  any  soldier,  his  heirs  or  legal  representatives,  who 
served  in  the  Army  a  period  of  less  than  six  months.  Sec. 
5,  ibid. 

Mexican   war     1058.  That  the  Secretary  of  War  be,  and  he  hereby  is 
Application  authorized  and  directed  to  amend  the  military  record  of 

for    removal    of  «•.,.*-  -^i      ™ 

charge  of  deaer-  any  soldier  who  enlisted  for  the  war  with  Mexico,  upon 

10se,c.6,ibid.  proper  application,  where  the  rolls  and  records  of  the  Ad- 
jutant General's  office  show  the  charge  of  desertion  against 
him,  when  such  rolls  and  records  show  the  facts  set  out  in 
the  following  cases : 

^Length  of  serv-  ]?irst.  That  said  soldier  served  faithfully  the  full  term  of 
his  enlistment,  or  having  served  faithfully  for  six  months 
or  more,  and  until  the  fourth  day  of  July  anno  dornini 
eighteen  hundred  and  forty-eight,  left  his  command  without 
having  received  a  discharge. 

tulnluntary  re  Second.  That  such  soldier,  after  said  charge  of  desertion 
was  entered  on  the  rolls,  voluntarily  returned  to  his  com- 
mand within  a  reasonable  time,  and  served  faithfully  until 
discharged.  Sec.  6,  ibid. 

1059.  That  the  provisions  of  this  act  shall  not  be  so  con- 
strued as  to  relieve  any  soldier  from  the  charge  of  desertion 
who  left  his  command  from  disaffection  or  disloyalty  to  the 
Government,  or  to  evade  the  dangers  and  hardships  of  the 
service,  or  whilst  in  the  presence  of  the  enemy  (not  being- 
sick  or  wounded),  or  while  in  arrest  or  under  charges  for 
breach  of  military  duty,  or  in  case  of  a  soldier  of  the  Mex- 
ican War,  who  did  not  actually  reach  the  seat  of  war. 
Sec.  7,  ibid. 

1060.  That  when  such  charge  of  desertion  is  removed 
£*£-  under  the  provisions  of  this   act,   the  soldier  shall  be 

sec.  s,  i6id.  restored  to  a  status  of  honorable  service,  his  military 
record  shall  be  corrected  as  the  facts  may  require,  and  an 
honorable  discharge  shall  be  issued  in  those  cases  where 
the  soldier  has  received  none ;  and  he  shall  be  restored  to 
all  his  rights  as  to  pension,  pay,  or  allowances  as  if  the 
charge  of  desertion  had  never  been  made;  and  in  case  of 
the  death  of  said  soldier,  his  widow  or  other  legal  heir 
shall  be  entitled  to  the  same  rights  as  in  case  of  other 
deceased  honorably  discharged  soldiers.  Sec.  <§,  ibid. 
ab?e°ntpay  while  1061.  That  this  act  shall  not  be  construed  to  give  to  any 


THE    MILITARY    LAWS   OF   THE    UNITED    STATES.  375 

soldier,  or  his  legal  representatives  or  heir,  any  pay  or  allow- 
ance for  any  period  of  time  he  was  absent  without  leave, 
and  not  in  the  performance  of  military  duty.  Sec.  8,  ibid. 

1062.  That  all  applications  for  relief  under  this  act  shall  n^wTthn^hree 
be  made  to  and  filed  with  the  Secretary  of  War  within  the  [ejjg9from  July 
period  of  three  years  from  and  after  July  first,  eighteen  i6^ecs<  9  and  10« 
hundred  and  eighty  nine,  and  all  applications  not  so  made 
and  filed  within  said  term  of  three  years  shall  be  forever 
barred,  and  shall  not  be  received  or  considered.    Sec.  9,  ibid. 

1083.  That  all  acts  and  parts  of  acts  inconsistent  with  the 
pro  visions  of  this  act  are  hereby  repealed.1     Sec.  10,  ibid. 

1064.  That  section  nine  of  the  act  for  the  relief  of  certain    Time  extended 
volunteer  and  regular  soldiers  of  the  late  war  and  the  war    July 27, 1392, V. 
with  Mexico,  passed  March  second,  anno  Domini  eighteen 
hundred  and  eighty-nine,  be,  and  the  same  is  hereby,  so 
amended  as  to  extend  the  time  of  limitation  of  the  opera- 
tion of  said  section  for  the  period  of  two  years  from  the 

first  day  of  July,  eighteen  hundred  and  ninety-two.  Act 
of  July  27,  1892  (27  Stat.  L.,  278}. 

1065.  That  section  nine  of  the  Act  for  the  relief  of  certain    Time  extended 

for  applications. 

volunteer  and  regular  soldiers  of  the  late  war  and  the  war  Mar  2,  i8»5,v. 
with  Mexico,  approved  March  second,  eighteen  hundred 
and  eighty-nine,  be,  and  the  same  is  hereby,  so  amended 
as  to  remove  the  limitation  of  time  within  which  applica- 
tions for  relief  may  be  received  and  acted  upon  under  the 
provisions  of  said  Act.  Act  of  March  2,  1895  (28  Stat.  L., 
814). 

'The  persons  from  whose  military  record  there  may  be  a  removal  of  the  charge  of 
desertion,  under  the  act  of  March  2,  1889,  chapter  390,  are  those  against  whom  such 
a  charge  is  "now  standing."  Deserters,  therefore,  whose  cases  had,  at  the  date  of 
the  act,  been  judicially  duly  disposed  of— by  trial,  conviction,  and  sentence  by  court- 
martial— are  not  within  the  purview  of  the  statute.  (Dig.  J.  A.  Gen.,  350,  par.  43.) 

Held,  that  a  soldier  had  "served  faithfully'  in  the  sense  of  sec.  1  of  the  last- 
named  act  when,  having  been  sentenced  to  reduction  and  confinement  on  conviction 
of  desertion,  his  sentence  had  been  duly  executed,  and  he  had  thereupon  returned 
to  duty  and  served  for  a  considerable  further  period  in  a  status  of  honor.  (Ibid., 
par.  44.) 

The  act  of  1889  provides  that  the  charge  of  desertion  shall  be  removed  if  the 
soldier  has  "served  faithfully  until  *  *  *  May  1,  1865,  having  previously 
served  six  mouths  or  more"  *  *  *  Held,  that  the  six  months  of  service  need  not 
have  been  continuous,  provided  they  were  actually  served  before  May  1, 1865,  and 
the  soldier  was  in  service  at  that  date.  (Ibid,,  par.  45.) 

Held,  that  a  soldier  was  not  within  the  description  of  section  2  (third)  of  the  act  of 
1889,  of  having  been  "discharged"  from  service  by  a  court  of  "competent  jurisdic- 
tion," who  had,  as  a  minor,  enlisted  without  consent,  been  discharged  upon  habeas 
corpus  by  a  State  court.  (Ibid.,  351,  par.  46.) 

A  pardon  does  not  operate  retroactively,  and  can  not  therefore  "  remove  a  charge" 
of  desertion.  It  does  not  wipe  out  the  fact  that  the  party  did  desert,  norcan  it  make 
the  record  say  that  ho  did  not  desert.  It  can  not  change  facts  of  history.  Nor  can 
a  pardon  restore  amounts  which  have  been  actually  forfeited  by  desertion.  (Ibid., 
par.  47.) 

The  restoration  of  a  deserter  to  duty  without  trial  under  par.  132,  A.  E.  [1895],  does 
not  operate  as  an  acquittal,  or  relieve  the  deserter  from  the  forfeitures  of  pay 
(including  retained  pay)  incurred  by  operation  of  law  under  paragraphs  1380  and 
1381,  A.  K.  1895.  (Ibid.,  351,  par.  48.) 

A.  pardon  does  not  operate  retroactively,  and  can  not  therefore  "remove  a  charge'' 
of  desertion.  It  does  not  wipe  out  the  fact  that  the  party  did  desert,  nor  can  it 
make  the  record  say  that  he  did  not  desert.  It  can  not  change  facts  of  history. 
Nor  can  a  pardon  restore  amounts  which  have  been  actually  forfeited  by  desertion. 
(Ibid.,  par.  47.) 


376 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 


STATUTE   OF   LIMITATIONS  IN  DESERTION. 


statute  of  lim- 

itation  in  deser- 

tion 


1066.  No  person  shall  be  tried  or  punished  by  a  court- 

.  ,  _  .  ,         n 

martial  for  desertion  in  time  of  peace  and  not  in  the  face 
>  18£°'  v'  of  an  enemy,  committed  more  than  two  years  before  the 
arraignment  of  such  person  for  such  offense,  unless  he  shall 
meanwhile  have  absented  himself  from  the  United  States, 
in  which  case  the  time  of  his  absence  shall  be  excluded  in 
computing  the  period  of  the  limitation  :  Provided,  That  said 
limitation  shall  not  begin  until  the  end  of  the  term  for 
which  said  person  was  mustered  in  to  the  service.1  Act  of 
April  11,  1890  (26  Stat.  L.,  54). 


MISCELLANEOUS  PROVISIONS. 


Par. 

1067.  Exemption  of  enlisted  men 
from  arrest  for  debt. 


Par. 

1068.  Enlisted  men  not  to  be  used 
as  servants. 


Exemption 
from  arrest  for 
debt. 

Sec.  1237,11.8 


1067.  No  enlisted  man  shall,  during  his  term  of  service, 
be  arrested  on  mesne  process,  or  taken  or  charged  in  exe- 
cution for  any  debt,  unless  it  was  contracted  before  his 
enlistment,  and  amounted  to  twenty  dollars  when  first 
contracted. 

1068.  No  officer  shall  use  an  enlisted  man  as  a  servant  in 


Enlisted  men 

not   to    be  used 

as  servants.       any  case  whatever. 

Sec.  14,  J  uly  15, 


DECEASED   SOLDIERS. 


Par. 

1069.  Deceased  .soldiers'  effects. 


Par. 

1070.  Officers  charged  with  effects 
of  deceased  soldiers  to  ac- 
count for  same. 


Deceased  sol      1069.  In  case  of  the  death  of  any  soldier,  the  command- 

diers'  effects. 

126  Art.  War.  ing  omeer  of  his  troop,  battery,  or  company  shall  immedi- 

1  The  so-called  "deserter's  release,"  provided  for  by  General  Orders  55  of  1890,  is 
accorded  when,  by  reason  of  the  period  which  has  elapsed  since  the  end  of  his  term 
of  enlistment,  the  deserter  could  successfully  plead  the  statute  of  limitations  to  a 
prosecution  for  his  desertion.  This  period  is  complete  at  the  expiration  of  seven 
years  from  the  date  of  the  enlistment  or  of  two  years  from  the  end  of  its  term.  But 
where  a  soldier,  who  would  have  been  eligible  for  such  release  on  May  9,  1804,  was, 
in  February  preceding,  arrested,  brought  to  trial,  convicted,  and  sentenced  to  be 
dishonorably  discharged,  and  was  so  discharged  accordingly,  held  that  he  was  not 
within  the  privilege  of  the  General  Orders,  and  that  the  release  could  not  be  ac- 
corded him.  [As  to  the  purpose  and  effect  of  this  "Kelease,"  see  Circular  No.  5 
(H.  Q.  A.),  1894.]  (Dig.  J .  A.  Gen.,  349,  par.  40.) 

The  "deserter's  release"  is  intended  for  deserters  in  whose  favor  the  limitation  of 
the  present  one  hundred  and  third  article  of  war  has  fully  run,  and  who  therefore 
Lave  a  perfect  defense  to  a  prosecution.  It  was  designed  to  secure  them  against 
proceedings  for  desertion  and  to  obviate  the  expenses  to  which  the  Government 
might  be  put  in  the  matter  of  their  arrest  and  their  trial.  But  it  is  not,  and  can  not, 
in  view  of  the  provisions  of  article  4,  serve  as  a  discharge  from  the  Army.  The 
language  of  General  Orders  55  of  1890,  which  describes  it  as  a  release  "from  the 
Army  'Ms  therefore  faulty.  (Ibid.,  350,  par.  41.) 

A  deserter  who  has  been  once  dishonorably  discharged  is  not  a  subject  for  the 
"release" — does  not  belong  to  the  class  of  persons  for  whom  it  is  intended.  It  is 
designed  for  soldiers  actually  in  service.  It  can  not  therefore  now  be  given  to  one 
who  was  a  soldier  of  a  volunteer  organization  during  the  late  war.  Is  or  can  it  be 
issued  in  a  case  of  a  soldier  who  has  deceased.  (Ibid.,  par.  42.) 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  377 

ately  secure  nil  his  effects  then  in  camp  or  quarters,  and 
shall,  in  the  presence  of  two  other  officers,  make  an  inven- 

yry  thereof,  which  he  shall  transmit  to  the  office  of  the 
int  of  War.1     One  hundred  and  twenty-sixth  Article 
of  War. 

1070.  Officers  charged  with  the  care  of  the  effects  of 
deceased  officers  or  soldiers  shall  account  for  and 
the  same,  or  the  proceeds  thereof,  to  the  legal  representa-eaj™|-Art  War 
tives  of  such  deceased  officers  or  soldiers.  And  no  officer 
so  charged  shall  be  permitted  to  quit  the  regiment  or  post 
until  he  has  deposited  in  the  hands  of  the  commanding 
officer  all  the  effects  of  such  deceased  officers  or  soldiers 
not  so  accounted  for  and  delivered.2  One  hundred  and 
twenty -seventh  Article  of  War. 

1  DISPOSITION  OF  EFFECTS. 

When  a  soldier  is  killed  in  action,  or  dies  at  any  post,  hospital,  or  station,  it  shall 
be  the  duty  of  his  immediate  commander  to  secure  his  effects  and  to  prepare  the 
im-entory  required  by  the  one  hundred  and  twenty-sixth  article  of  war,  according 
to  prescribed  form.  Duplicates  of  the  inventory,  with  final  statements,  will  be 
forwarded  direct  to  the  Adjutant-General  of  the  Army.  (Par.  158,  A.  11.,  1895.) 

2Should  the  effects  of  a  deceased  soldier  not  be  claimed  within  thirty  days,  they 
will  be  sold  by  a  council  of  administration  under  the  authority  of  the  post  com- 
mander, and  the  proceeds  transferred  to  the  commander  of  the  company  to  which 
the  deceased  belonged,  by  whom  they  will  be  deposited  with  a  paymaster  to  the 
credit  of  the  United  States.  Duplicate  receipts  will  be  taken,  one  of  which  will  be 
sent  direct  to  the  Adjutant-General  of  the  Army  and  the  other  retained  with  the 
company  records.  (Par.  159,  A.  R.,  1895.) 

In  all  cases  of  sale  by  a  council  of  administration,  a  detailed  statement  of  the  pro- 
ceeds, duly  certified  by  the  council  and  commanding  officer,  will  accompany  the  pay- 
master's receipt  forwarded  by  the  company  commander  to  the  Adjutant-General  of 
the  Army.  The  statement  will  be  indorsed  •  "  Keport  of  the  proceeds  of  the  effects 

of ,  late  of  company , regiment  of ,  who  died  at ,  the 

day  of , ."  (Par.  160.  ibid.) 

The  effects  will  be  delivered,  when  called  for,  to  the  legal  representatives  of  the 
deceased,  and  the  receipts  therefor  forwarded  to  the  Adjutant -General  of  the  Army. 
Applications  for  arrears  of  pay  and  proceeds  of  sale  of  effects  of  deceased  soldiers 
should  be  addressed  to  the  A'uditor  for  the  War  Department,  Washington,  D.  C., 
who  settles  such  accounts.  (Par.  161,  ibid  ) 

In  the  settlement  of  the  accounts  of  deceased  soldiers,  the  accounting  officers  dis- 
pense with  administration,  and,  as  it  were,  administer  themselves,  paying  to  the 
persons  entitled  such  amounts  as  may  be  found  to  be  due  the  deceased  in  a  final  set- 
tlement of  hia  accounts  with  the  United  States.  (3  Compt.  Dec.,  197.) 

FUNEKAL  EXPENSES. 

The  remains  of  deceased  soldiers  will  be  decently  inclosed  in  coffins  and  trans- 
ported by  the  Quartermaster's  Department  to  the  nearest  military  post  or  national 
cemetery  for  burial,  unless  the  commanding  officer  deem  burial  at  the  place  of  death 
to  bo  proper,  when  a  report  of  the  fact  will  be  made  to  the  Adjutant-General  of  the 
Army.  The  expense  of  transporting  the  remains  is  payable  from  the  appropriation 
for  Array  transportation ;  other  expenses  of  burial  are  limited  to  $15  for  noncom- 
missioned officers  and  $10  for  private  soldiers.  (Par.  162,  A.  R.,  1895.) 

The  annual  acts  of  appropriation  since  that  of  August  8,  1846  (9  Stat.  L.,  C8),  have 
contained  provision  for  the  expenses  of  interment  of  noncomissioned  officers  and 
soldiers. 


CHAPTER   XXIX. 


THE   TROOPS   OF   THE   LINE. 


CAVALRY. 


Par. 

1071.  Cavalry  regiment;    organi- 

zation. 

1072.  Cavalry  troop, 

1073.  Colored  cavalry  regiments. 

1074.  Dismounted  cavalry. 

1075.  Artillery  regiment;  organi- 

zation. 


I    Par.       % 

1076.  Artillery  battery. 

1077.  Light  battery. 

1078.  Infantry  regiment;  organi- 

zation. 

1079.  Infantry  company. 

1080.  Colored  infantry  regiments. 


Cavalry   regi 

ment;    organiza 


1071.  Each  regiment  of  cavalry  1  shall  consist  of  twelve 

-  .  ,, 

troops,  one  colonel,  one  lieutenant-colonel,  three  majors, 
42,  8^*9,  v.  i2^p.'  one  adjutant,  one  quartermaster,  one  veterinary  surgeon, 
c82^ls?ii!v8i2;  with  the  rank  of  regimental  sergeant-major,  one  sergeant- 
c'v^iTp'S  maJorj  one  quartermaster-sergeant,  one  saddler-sergeant, 
%^  3i  H63'  C,J£  'One  chief  musician,  who  shall  be  instructor  of  music,  and 

8.  o7,  v.  1  J,  p.  737  j 

July  28,  i8C6,  c.  one  chief  trumpeter.  Two  assistant  surgeons  may  be 
332';Mar.\  ISM,'  allowed  to  each  regiment,  and  the  seventh,  eighth,  ninth 
sisf'j^fyisSToi  and  tenth  regiments  shall  have  an  additional  veterinary 
ic?9p.'  list  Jul"  surgeon.  The  adjutant  and  the  quartermaster  of  each  reg- 


icp.   is   July  .  - 

]9  p898:-Au|C'i5'iraeDt  sna11  be  extra  lieutenants,  selected  from  the  first  or 
''  secon(^  lieutenants  of  the  regiment.2 


pcT 
PP-  * 
sec. 


V'  19'  '  Of  tne  several  cavalry  regiments  now  composing  the  peace  establishment,  the 
p  w  first,  a  regiment  of  dragoons,  was  authorized  by  the  act  of  March  2.  1833  (4  Stat.  L., 
,  u.».  652)>  A  8ecoml  regiment  of  dragoons  was  authorized  by  the  act  of  May  23.  1836 
(5  Stat.  L.,  32).  The  second  regiment  of  dragoons  was  converted  into  a  regiment  of 
riflemen  by  the  act  of  August  23,  1842  (5  Stat.  L  .  512),  but  was  reconverted  into  a 
regiment  of  dragoons  by  the  act  of  April  4,  1844  (5  Stat.  L  .654).  A  regiment  of 
mounted  riflemen  was  added  to  the  establishment  by  the  act  of  May  19.  1846  (9  Stat. 
L.,  13).  Two  regiments  of  cavalry  (known  as  the  First  and  Second)  were  authorized 
by  the  act  of  March  3,  1855  (10  Stat.  L.,  635).  A  third  regiment  of  cavalry  was 
organized  by  order  of  the  President  on  May  4,  1861,  confirmed  by  the  act  of  July  29, 
1861  (12  Stat.  L.,279).  In  accordance  with  the  authority  conferred  by  the  act  of 
August  3,  1861,  the  six  mounted  regiments  of  the  Army  were  consolidated  into  one 
corps  and  designated  as  follows: 

The  First  Regiment  of  Dragoons,  as  the  First  Cavalry. 
The  Second  Regiment  of  Dragoons,  as  the  Second  Cavalry. 
The  Regiment  of  Mounted  Riflemen,  as  the  Third  Cavalry. 


378 


Four  regiments  of  cavalry,  the  Seventh,  Eighth,  Ninth,  and  Tenth,  the  Ninth  and 
Tenth  composed  of  colored  men.  were  added  to  tlie  establishment  under  the  authority 
conferred  by  the  act  of  July  28, 1866. 

The  act  of  November  21,  1877  (20  Stat.  L.  2),  contained  a  proviso  that  'cavalry 
regiments  may  bo  recruited  to  one  hundred  men  in  each  company,  and  kept  as  near 
as  practicable  at  that  number,  and  a  sufficient  force  of  cavalry  shall  be  employed 
in  the  defense  of  the  Mexican  and  Indian  frontier  of  Texas :  Provided,  That  nothing 
herein  contained  shall  authorize  the  recruiting  the  number  of  men  on  the  Army 
rolls,  including  Indian  scouts  and  hospital  stewards,  beyond  twenty-five  thousand." 

2 THE  REGIMENTAL  STAFF. 

The  staff  of  a  regiment  consists  of  the  adjutant  and  quartermaster,  and  they  will 
be  so  designated.  They  will  be  appointed  by  the  regimental  commander,  who  will 
at  once  report  his  action  to  the  Adjutant  General  by  telegraph .  the  appointment  of 
the  quartermaster  is  made  subject  to  the  approval  of  the  Secretary  of  War.  Each 
appointment  will  take  effect  the  day  on  which  it  is  made,  and  the  officer  appointed 
will  be  entitled  to  the  pay  pertaining  thereto  from  the  date  when  he  assumes  the 
duties  under  such  appointment.  (Par.  233,  A  R.,  1895.) 

The  adjutant  or  quartermaster  may  hold  office  for  tour  years,  including  all  periods 
of  such  service,  and  no  longer.  He  will  not  be  eligible  for  a  second  tour  of  such 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  379 


1072.  Eacli  troop  of  cavalry  shall  consist  of  one  captain, 

one  first  lieutenant,  one  second  lieutenant,  one  first  sergeant,  299,  s  .^3, 

one  quartermaster-sergeant,  five  sergeants,  four  corporals,  c.  201,  8.n,V.  12! 

7  p.599;Jan.6,18C3, 

two  trumpeters,  two  farriers,  one  saddler,  one  wagoner,  c.  7,  v.  12,  P.  634  ; 

.    .  /  Mar.  3,  1863,  c.  75, 

and  such  number  of  privates,  not  exceeding  seventy-eight,  s.37,v.i2,  p.  737? 

,  ,       _.         .  ,  ,  .          ,   ,  Julvl5  1870  c  294  s.  10,  v.  16,  p.  318. 

as  the  President  may  direct.1  '    sec.iioh,u.s. 

1073.  The  enlisted  men  of  two  regiments  of  cavalry  shall  Colored  cavalry 

,  ,          ,  regiments. 

be  colored  men.  July  28,  isee,  c.  299,  s.  3.  v.  14,  p.  332.    sec.  1104,  n.  s. 

1074.  Any  portion  of  the  cavalry  force  may  be  armed  and    Dismounted 
drilled  as  infantry  or  dismounted  cavalry,  at  the  discretion  cajuiyJ28,  iseo,  c. 
of  the  President.  35,  ..  3.  v.  u,  P. 

ARTILLERY.2  Sec.  1106,  R.S. 

1075.  Each  regiment  of  artillery  shall  consist  of  twelve  m^jjillery  regi" 
batteries,  one  colonel,  one  lieutenant-colonel,  one  major  fo 

every  four  batteries,  one  adjutant,  one  quartermaster  and  230  j 

J  .  c.  229,  s.  2,v.  14,    . 

commissary,  one  sergeant-major,  one  quartermaster-  ser-  332;  Mar.  sj  869, 
geant,  one  chief  musician,  who  shall  be  instructor  of  music,  Sisf  juiyiVisVoi 
and  two  principal  musicians.  The  adjutant  and  quarter-  pf^'  8-  10'  v-  16' 
master  and  commissary  shall  be  extra  lieutenants,  selected  Sec.i099,n.s. 
from  the  first  or  second  lieutenants  of  the  regiment.3 

1076.  Each  battery  of  artillery  shall  consist  of  one  captain,  ^Artillery  bat- 
one  first  lieutenant,  one  second  lieutenant,  one  first  ser-  -e5uiy  29,1861,0. 
geant,  one  quartermaster-  ser  geant,  four  sergeants,  four  cor-  279  ^juiy^fse?,' 
porals,  two  musicians,  two  artificers,  one  wagoner,  and  as  §3^jaiy  w,  %7?i 
many  privates,  not  exceeding  one  hundred  and  twenty-  £  |9£-  8-10iV-16' 
two,  as  the  President  may  direct.     One  first  lieutenant,    sec.noo,K.s. 
one  second  lieutenant,  two  sergeants  and  four  corporals 

maybe  added  to  this  battery  organization  at  the  discretion 
of  the  President. 


1077.  One  battery  in  each  regiment  of  artillery,  to  be 
designated  by  the  President,  shall  be  equipped  as  l*gfc*Mi£fM7Pe66 

duty  nor  for  appointment  or  reappointment  to  either  position,  except  to  servo  an  9'K  '  v-ii'Ji'  w  ° 
unexpired  term  of  four  years.     (Par.  234,  ibid.)  *ec*  "w*»  "' 

A  regimental  commander  is  restricted  in  his  choice  of  staff  officers  to  the  lieuten- 
ants on  duty  with  the  regiment  and  who  are  not  at  a  school  of  instruction  nor  witli 
light  batteries.  Should  he  desire  to  appoint  a  lieutenant  absent  from  the  regiment, 
the  lieutenant  must  join  before  the  appointment  can  be  made.  (Par.  235,  ibid.) 

Medical  officers  are  no  longer  attached  to  regiments  on  the  peace  establishment. 

'Since  1883  companies  of  cavalry  have  been  designated  "troops."  (Circulars  8 
and  9,  A.  G.  0.  1883  ;  see  also  Cavalry  Drill  Regulations.)  By  Executive  Orders  the 
enlisted  men  of  Troops  L  and  M  of  each  regiment  of  cavalry  were  distributed  among 
tLe  other  troops.  (G.  O.  79  and  120,  A.  G.  O.  1890.)  By  General  Orders  No.  28, 
Adjutant-General's  Office  of  1891,  certain  cavalry  troops  were  to  be  composed  of 
Indians.  The  enlistment  of  Indians  having  been  discontinued  these  organizations 
have,  with  the  exception  of  Troop  L,  Seventh  Cavalry,  again  become  skeleton  troops. 
The  Indians  of  Troop  L,  Seventh  Cavalry,  are  ultimately  to  be  discharged.  (Report 
of  Adjutant-General  to  the  Secretary  of  War,  pp.  7,  10.) 

5At  the  general  reduction  of  the  Army,  eifected  in  pursuance  of  the  act  of  March 
2,  1821  (3  Stat.  L.,  615),  the  artillery  was  consolidated  into  four  regiments  of  nine 
companies  each,  one  of  which,  in  each  regiment,  was  to  be  designated  and  equipped 
as  light  artillery.  The  Ordnance  Department  was  merged  in  the  artillery,  a  super- 
numerary capta'in,  for  ordnance  duty,  was  added  to  each  regiment,  and  the  President 
was  authorized  "  to  select  from  the  regiments  of  artillery  such  officers  as  maybe 
necessary  to  perform  ordnance  duties  who,  while  so  detached,  shall  be  subject  only 
to  the  orders  of  the  War  Department."  The  Ordnance  Department  was  separated 
from  the  artillery  by  the  act  of  May  25,  1832  (4  Stat.  L.,  605).  One  company  was 
added  to  each  regiment  by  theactof  July  5,  1838  (SStat.  L.,  256),  and  two  companies  by 
section  18  of  theact  of  March  3,  1847  (9Stat.  L.,  184),  making  twelve  companies  in  all. 
The  act  of  March  3,  1847,  authorized  the  President  to  designate  an  additional  company 
in  each  regiment  to  be  armed  and  equipped  as  light  artillery.  The  fifth  regiment 
was  added,  as  a  regiment  of  light  artillery,  by  order  of  the  President,  on  May  5, 
1861,  the  organization  being  confirmed  by  the  act  of  July  29,  1801  (12  Stat.  L.,278). 

3See  note  to  paragraph  1071,  ante. 


380  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

artillery,  and  one  other  battery  may  be  so  designated  and 
equipped,  when  the  President  may  deem  it  necessary.1 

INFANTRY.2 

infantry  regi-  1078.  Each  infantry  regiment  shall  consist  of  ten  com- 
mjuiy  28,  isee,  c. -panics,  one  colonel,  one  lieutenant-colonel,  one  major,  one 

299,  s.  6,  v.  14,  p.  L 

333;  Mar.  3,1869,  adjutant,  one  quartermaster,  one  sergeant-major,  one  quar- 
3i8;  Juiy'S  isVo,  termaster-sergeant,  and  one  chief  musician,  who  shall  be 
P.  lis! 8' 10' v  16>  instructor  of  music,  and  two  principal  musicians.  The  adju- 

sec.  iioo, R.S.  £aii£  ail(j  t|ie  quartermaster  shall  be  extra  lieutenants  select- 
ed from  the  first  or  second  lieutenants  of  the  regiment.3 

i"J'antry  com  1079.  Each  company  of  infantry  shall  consist  of  one  cap- 
2991ily628v1uG 'c'tain,  one  first  lieutenant,  one  second  lieutenant,  one  first 
333';  July  is,  i87o,  sergeant,  one  quartermaster-sergeant,  four  sergeants,  four 

c.  294,  88.  2, 10,  v. 

16,  pp.  si?,  sis.     corporals,  two  artificers,  two  musicians,  one  wagoner,  and 
'  fifty  privates,  and  the  number  of  privates  may  be  increased 
at  the  discretion  of  the  President  not  to  exceed  one  hun- 
dred, whenever  the  exigencies  of  the  service  require  such 
increase.4 
Colored  infan-     1080.  The  enlisted  men  of  two  regiments  of  infantry  shall 

try  regiments. 

July 28,  i£66,  c.  be  colored  men. 

299,8.4,  v.!4,p.332; 

Mar.  3,   1869,   c.  . 

124,  s.  2,  v.  15,  p.      i  T,vo  batteries  in  each  regiment  of  artillery  are  now,  by  Executive  Order,  desig- 
ns'     line  u  V   nated  as  light  batteries. 

S»ec.  lius,K.?».  The  f<\r8t  Regiment  of  infantry  was  authorized  by  the  act  of  April  30,  1790 
(1  Stat.  L.,  119).  the  Second  by  the  act  of  March  3,  1791  (ibid.,  222),  the  Third  and 
Fourth  by  the  act  of  May  30,  1796  (ibid.,  483),  the  Fifth,  Sixth,  and  Seventh  regi- 
ments by*  the  act  of  June  26, 1812  (2  Stat.  L.,  764),  and  tbe  number  of  regiments  of 
infantry* was  fixed  at  seven  by  the  act  to  reduce  and  lix  the  military  establishment, 
approved  March  2, 1821.  The  Eighth  Regiment  was  added  by  the  act  of  July  5,  1838, 
and  the  President  was  authorized  "whenever  he  may  deem  it  expedient,  to  cause 
not  exceeding  two  of  the  regiments  of  infantry  to  be  armed  and  equipped  as  regi 
ments  of  riflemen,  and  one  other  of  the  regiments  of  infantry  to  be  armed  and 
equipped  and  to  serve  as  a  regiment  of  light  infantry."  The  JN  inth  and  Tenth  regi- 
ments were  authorized  by  the  act  of  March  3, 1855  (10  Stat.  L  ,  701).  The  Eleventh 
to  the  Nineteenth  regiments,  inclusive,  were  organized  by  order  of  the  President  on 
May  4, 1861,  the  organization  being  confirmed  by  the  act  of  July  29, 1861  (12  Stat.  L., 
279).  Twenty  five  regiments,  from  the  Twentieth  to  the  Forty-fifth,  inclusive,  were 
authorized  by  the  act  of  July  28,  1866,  of  which  four,  from  the  Thirty  eighth  to  the 
Forty-first,  inclusive,  were  to  be  composed  of  colored  men,  and  four,  from  the  Forty- 
second  to  the  Forty-fifth,  inclusive,  were  to  be  composed  of  men  who  had  been 
wounded  in  the  line  of  duty  and  were  toconstitute  a  Veteran  Reserve  Corps.  At  the 
redaction  effected  in  pursuance  of  section  2  of  the  act  of  March  3, 1869  (15  Stat.  L  , 
318),  the  number  of  infantry  regiments  was  reduced  to  twenty-five.  In  effecting  the 
consolidation  required  by  the  act  above  cited,  the  designations  of  the  First,  Second, 
Third,  Fourth,  Fifth,  Sixth,  Seventh,  Eighth,  Ninth,  Tenth,  Twelfth.  Thirteenth. 
Twentieth,  and  Twenty-third  regiments  were  not  changed;  the  Eleventh  Regiment 
•was  formed,  by  consolidation,  from  the  Twenty-fourth  and  Twenty -ninth  ;  the  Four- 
teenth from  the  Fourteenth  and  Forty-fifth;  the  Fifteenth  from  the  Fifteenth  and 
Thirty-fifth;  the  Sixteenth  from  the  Eleventh  and  Thirty-fourth;  the  Seventeenth 
from  the  Seventeenth  and  Forty-fourth ;  the  Eighteenth  from  the  Eighteenth  and 
Twenty-fifth;  the  Nineteenth  from  the  Nineteenth  and  Twenty  eighth;  the  Twenty- 
first  from  the  Twenty-first  and  Thirty-second ;  the  Twenty-second  from  the  Twenty- 
second  and  Thirty -first;  the  Twenty-fourth  from  the  Thirty-eighth  and  Forty  first; 
the  Twenty-fifth  from  the  Thirty-ninth  and  Fortieth. 

The  regiments  organized  prior  to  the  4th  of  May,  1861,  were  composed  of  ten  com- 
panies each ;  those  organized  by  Executive  Order  of  that  date  were  each  composed  of 
three  battalions  of  eight  companies  each.  The  organization  prescribed  by  the  act 
of  July  28, 1866,  which  is  now  in  force,  fixes  the  organization  of  an  infantry  regiment 
at  ten  companies,  of  a  cavalry  regiment  at  twelve  companies,  and  a  regiment  of 
artillery  at  the  same  number. 
3  See  note  2  to  paragraph  1071,  ante. 

*  The  enlisted  men  of  Companies  I  and  K  of  each  regiment  of  infantry  were,  by 
General  Orders  Nos.  76  and  120  of  1890,  from  the  Adjutant-General's  Ofnce  distrib 
uted  among  the  other  companies  of  the  several  regiments.  Under  the  authority  con- 
ferred by  General  Orders,  No.  28,  of  1891,  from  the  Adjutant-General  s  Office,  com- 
panies of  infantry  have  been  organized  the  enlisted  men  of  which  were  Indians. 
Subsequently  the  enlistment  of  Indians  was  discontinued,  and  these  organizations 
have  again  become  skeleton  companies.  (Report  of  Adjutant-General  to  the  Secre- 
tary of  War,  pp.  7,  10.) 


CHAPTER   XXX. 


THE   MILITARY  ACADEMY— THE   SEKVICE 
SCHOOLS. 

THE  MILITARY  .ACADEMY. 


Par. 

1081.  Officers,  professors,  and  in- 

structors. 

1082.  Assignment  of  law  professor. 

1083.  Professor  of  modern  la ir 

guages. 

1084.  Associate  professor  of  math- 

ematics. 

1085.  Chaplain  of  the  Military 

Academy. 

1086.  Supervision  of  Academy. 

1087.  Appointment  of  officers  and 

professors. 

1088.  Selection  of  officers. 

1089.  No  graduate  to  be  assigned 

to  duty  at  the  Academy 
until  two  years  after 
graduation. 

1000.  Local  rank  of  superintend- 
ent and  commandant. 

1091.  Superintendent's  command. 

1092.  Commandant  of  cadets. 

1093.  Superintendent    and     com- 

mandant, pay  of. 

1094.  Pay  of  professors. 

1095.  Retirement  of  professors. 
1896.  Assistant  professors  and  in- 
structors. 

1097.  Pay  of  assistant  instructors 

of  tactics. 

1098.  Quartermaster  and  commis- 

sary of  cadets ;  supplies  at 
cost. 

1099.  Adjutant,  pay  of. 

1100.  Librarian  and  assistant. 

1101.  Master  of  sword. 

1102.  Cadets,    number     and     ap- 

pointment of. 


Par. 

1103.  Cadets  at  large. 

1104.  Appointment  in  advance. 

1105.  Age  of  appointees. 

1106.  Examination  and  qualifica- 

tions. 

1107.  Oath. 

1108.  Engagement  for  service. 

1109.  Pay  of  cadets. 

1110.  Graduates    to    be    commis- 

sioned, if  competent,  in 
any  arm  or  corps  in  which 
a  vacancy  exists. 

1111.  But  one  supernumerary  offi- 

cer to  be  attached  to  each 
company. 

1112.  To  receive  pay  from  date  of 

graduation. 

1113.  Cadet  battalion. 

1114.  Where  to  do  duty. 

1115.  No  studies  on  Sunday. 

1116.  Deficient  cadets. 

1117.  Hazing;  penalty. 

1118.  Courts-martial   for  trial   of 

cadets. 

1119.  Board  of  visitors. 

1120.  Duties  of  visitors. 
1121, 1122.  Compensation. 

1123.  Leaves  of  absence. 

1124.  Congressional  documents  to 

library. 

1125.  Government  publications. 

1126.  Purchases  for  library. 

1127.  Purchases  of  scientific  and 

technical  supplies. 

1128.  Contingencies    of    superin- 

tendent. 

1129.  Contingent  fund. 


381 


382      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


Par. 


1130.  Military  Academy  band. 

1131.  Pay  of  leader. 

1132.  Composition  of  band. 

1133.  Pay  of  band. 


Par. 


1136.  Pay  of  certain  enlisted  men. 

1137.  Study  of  effects  of  alcoholic 

drinks  and  narcotics. 

1138.  Enforced. 


1134.  General  Army  service  men.     i  1139,  1140.  The  Cnllnui  bequest. 

1135.  Limit  of  strength. 

-     1081.  The   United   States   Military   Academy  at  West 
structo'rs.          Point,  ill  the  State  of  New  York,  shall  be  constituted  as 

TVf"*iT  16  180*^  c 

9,  s.  28,  V.  2,  P.  is?;  follows:  There  shall  be  one  superintendent:  one  cominan- 

June  12,  1858,  c.  .  . 

156,  s.  i,  v.  11,  p  dant  of  cadets  :  one  senior  instructor  in  the  tactics  of  artil- 

333;  Apr.29,  1812,  ,  .         .  ,,  ,.  _  , 

c.  72,  s.  2,  v.  2,  p.  lery  ;  one  senior  instructor  in  the  tactics  of  cavalry;  one 

720;  Apr.14,  1818,  .  ,.  ,.  „  .     x,  _ 

c.  6i,  s.2,  v.  3,  p.  senior  instructor  in  the  tactics  or  infantry;  one  professor 
1.  VP'.  and  one  assistant  professor  of  civil  and  military  engiueer- 
oisv.1!,3?!  ing;  one  professor  and  one  assistant  professor  of  natural 
c?fesuf,'vl  aJ4p!  and  experimental  philosophy;  one  professor  and  one  assist- 
e?8vJSo!lpl»;a*1*  Professor  of  mathematics;  one  professor  and  one 
450lv  n'  ^"loi0-  assistant  professor  of  chemistry,  mineralogy,  and  geology; 
^  9f'  3'  5941'  Feb'  oue  Pr°fessor  and  one  assistant  professor  of  drawing;  one 
28,  1867,  c.  100.  s.  professor  of  modern  languages;  one  assistant  professor  of 

i),  v.   14,   p.  416;  * 

4?bv  \6i  1857i6i-  *ne  ^rencu  language  ;  one  assistant  professor  of  the  Spanish 
sec.  4,  June  23,'  language  ;  one  assistant  professor  of  law;  one  adjutant; 

1879,  v.  21,  p.  34,  .   J 

Jan.  16,  3895,  v.  one  master  of  the  sword;  and  one  teacher  of  music. 

28.  p.  630;  Feb.  18, 

1896,  v.  29,  p.  8.       Sec.  1309,  B.  S. 

Assignment  of     1082.  That  the  Secretary  of  War  may  assign  one  of  the 

law  professor. 

June  e,  1874,  v.  judge-advocates  of  the  Army  to  be  professor  of  law.     Act 

1880,'  v°2i,  p.'iw.'  of  June  6,  1874  (IS  Stat.  L.,  60).     Provided,  That  the  Secre- 

tary of  War  may,  in  his  discretion,  assign  any  officer  of  the 

Army  as  professor  of  law.1     Act  of  Juno  1,  1880(21  Stat. 

L.,  153). 

Professor  of     1083.  That  when  a  vacancy  occurs  in  the  office  of  pro- 

gnagea[n       °  fessor  of  the  French  language  or  in  the  office  of  professor 

1879,  v.  21,  p.  34.   of  the  Spanish  language  in  the  Military  Academy,  both 

these  offices  shall  cease,  and  the  remaining  one  of  the  two 

professors  shall  be  professor  of  modern  languages;  and 

thereafter  there  shall  be  in  the  Military  Academy  one,  and 

only  one,  professor  of  modern  languages.-     Act  of  June  23. 

1879  (21  Stat.  L.,  34). 

festor°of  'Ui'e-     1084>  Tliere  SQa11  be  appointed  at  the  Military  Academy 
mpa°8ami  allow  ^rom  ^ae  Armv>  *n  addition  to  the  professors  authorized  by 


ani  eo  11  o-  e  v  1  1  '  ^ne  exis^llff  laws,  an  associate  professor  of  mathematics,  who 
pay.  shall  receive  the  pay  and  allowances  of  a  captain  mounted, 

Mar.  1,1893;  v. 

27,  p.  515.          and  when  his  service  as  associate  professor  of  mathematics 

1  The  acts  of  June  27,  1881  (21  Stat.  L.,  319),  and  June  30,  1882  (22  Stat.  L.,  125), 
contain  a  similar  provision. 

2  The  vacancy  contemplated  in  this  enactment  occurred  on  June  30,  1882,  upon 
the  retirement  of  the  professor  of  Spanish.     The  statute  then  became  operative, 
and  the  professorships  of  the  French  and  Spanish  languages  were  merged  in  that 
of  Modern  Languages. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  383 

at  the  Academy  exceeds  ten  years,  lie  shall  receive  the  pay 
arid  allowances  of  major;  and  hereafter  there  shall  be 
allowed  and  paid  to  the  said  associate  professor  of  mathe- 
matics ten  per  centum  of  his  current  yearly  pay  for  each 
and  every  term  of  five  years'  service  in  the  Army  and  at 
the  Academy:  Provided,  That  such  addition  shall  in  no 
case  exceed  forty  per  centum  of  said  yearly  pay  5  and  said 
associate  professor  of  mathematics  is  hereby  placed  upon 
the  same  footing  as  regards  restrictions  upon  pay  and 
retirement  from  active  service  as  officers  of  the  Army.  Act 
of  March  1,  1893  (27  Stat.  L.,  515}. 

1065.  That  the  duties  of  chaplain  at  the  Military  Acad-    chapiainofthe 

Military     Acad- 
emy shall  hereafter  be  performed  by  a  clergyman  to  be  emy. 

appointed  by  the  President  for  a  term  of  four  years,  and  v.  29,  p.  8.' 
the  said  chaplain  shall  be  eligible  for  reappointment  for 
an  additional  term  or  terms  and  shall,  while  so  serving, 
receive  the  same  pay  and  allowances  as  are  now  allowed 
to  a  captain  mounted.  Act  of  February  18,  1896  (29  Stat. 
L.,  8). 

SUPERVISION. 

1086.  The  supervision  and  charge  of  the  Academy  shall  A^Evisi°n  °f 
be  iii  the  War  Department,  under  such  officer  or  officers  as    J ^g1^18^6' c- 
the  Secretary  of  War  may  assign  to  that  duty.1  92.' k 

Sec.  1381)  R.  S. 
THE   ACADEMIC   STAFF. 

1087.  The  superintendent,  the  commandant  of  cadets,  and    Appointment 

of  oft  cor  8  and 

the  professors  shall  be  appointed  by  the  President.    The  Professors- 

Feb.  28, 1803,  c. 

assistant  professors,  acting  assistant  professors,  and  the  ad-  is,  s.  2,v.  2,  P,  206; 
jutaut  shall  be  officers  of  the  Army,  detailed  and  assigned  156,  s.  i?v.  nip! 

,      ,     ,  .        ,         ,,        ,-,  ,  333;  Apr.  29, 1812, 

to  such  duties  by  the  Secretary  of  War,  or  cadets  assigned  c^  72,  s.  2,  v.  2,  P. 
by  the  superintendent,  under  the  direction  of  the  Secretary  ^lie,".  'e/v-'il^p'. 

Of  War.  Sec.  1313,  R.S. 

1088.  The  superintendent  and  commandant  of  cadets    selection  of  offi. 

cers. 

may  be  selected,  and  all  other  officers  on  duty  at  the  Acad-    J«iy  is,  iseo,  c. 
emy  may  be  detailed  from  any  arm  of  the  service ;  but  the  92.' 
academic  staff  as  such  shall  not  be  entitled  to  any  com- 
mand in  the  Army  separate  from  the  Academy. 

1089.  Hereafter  no  graduate  of  the  Military  Academv    NO  graduate  to 

J  J  be    assigned    to 


shall  be  assigned  or  detailed  to  serve  at  said  Academy  asdutyatth* 

emy  within  two 

a  professor,  instructor,  or  assistant  to  either,  within  two  years  after  grad- 
uation. 


years  after  his  graduation,  and  so  much  of  the  act  of  June    July  26, 1395,  v. 
thirtieth;  eighteen  hundred  and  eighty-two,  as  requires 
a  longer  service  than  two  years  for  said  assignments  or 


'The  Military  Academy  is  withdrawn  from  the  control  and  supervision  of  depart- 
ment commanders  by  the  terms  of  paragraph  190,  Army  Regulations  of  1895. 


384  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

details  is  hereby  repealed.1     Act  of  July  26,  1894  (SS.Stat. 

L.,  151). 

Local  rank  of  1090.  The  superintendent  and  the  commandant  of  cadets, 
auScommandant  while  serving  as  such,  shall  have,  respectively,  the  local 
if>oUseilVn8lp'  ran^  of  colonel  and  lieutenant-colonel  of  engineers. 

3331  8SecYl310JR.  S. 

1091.  The  superintendent,  and,  in  his  absence,  the  next 


9     svm       rank>  shall  have  the  immediate  government  and  military 
Aug.  23',  is42,  c!  command  of  the  Academy,  and  shall  be  commandant  of  the 

186,  s.  6,  v.  5,  p.  V 

513.  military  post  of  West  Point. 

Sec.  3111,  R.S. 

caCoramandantof     1092.  The  commandant  of  the  cadets  shall  have  the  im- 

j  une  12,  1858,  c.  mediate  command  of  the  battalion  of  cadets,  and  shall  be 

33:5'.  instructor  in  the  tactics  of  artillery,  cavalry,  and  infantry, 

Sec.  1312,  R.  S. 

superintend-     1093.  The  superintendent  of  the  Military  Academy  shall 
£  have  tue  Pav  of  a  colonel,  and  the  commandant  of  cadets 


June  12,  1858,  c.  shall  have  the  pay  of  a  lieutenant-colonel. 

Io7,  ft.  1,  v.   11,  p. 

333.      Sec.  1334,  B.  S. 

Pay  of  profea     1094,  Each  of  the  professors  of  the  military  Academy 

Feb.  28.  1873,  c.  whose  service  as  professor  at  the  Academy  exceeds  ten 

"  HOC'.  4,'June  23,  years  shall  have  the  pay  and  allowances  of  colonel,  and 

sec]i33<f,'R.'s.  all  other  professors  shall  have  the  pay  and  allowances  of 

lieutenant-colonels  5  and  the  instructors  of  ordnance  and 

science  of  gunnery  and  of  practical  engineering  shall  have 

the  pay  and  allowances  of  major;  and  hereafter  there  shall 

be  allowed  and  paid  to  the  said  professors  ten  per  centum 

of  their  current  yearly  pay  for  each  and  every  term  of  five 

years'  service  in  the  Army  and  at  the  Academy:  Provided, 

That  such  addition  shall  in  no  case  exceed  forty  per  centum 

of  said  yearly  pay;  and  said  professors  are  hereby  placed 

upon  the  same  footing,  as  regards  restrictions  upon  pay 

and  retirement  from  active  service,  as  officers  of  the  Army.2 

1  The  act  of  June  30,  1882  (22  Stat.  L.,  123),  contained  the  requirement  that  no  grad- 
uate of  the  Military  Academy  should  be  assigned  or  detailed  to  serve  as  a  professor, 
instructor,  or  assistant  to  either,  within  four  years  after  his  graduation. 

2  Section  1336,  Revised  Statutes,  provides  that  "each  of  the  professors  of  the  Mili- 
tary Academy  whose  service  at  the  Academy  exceeds  ten  years  shall  have  tne  pay  and 
allowances  of  colonel."    Section  4  of  the  Army  appropriation  act  of  June  23,  1879, 
amends  this  section  by  inserting,  after  the  word  "service.'  the  words   'as  professor.  ' 
Held  that  professors  who  at  the  passage  of  the  last  statute  were  being  paid  as  colo- 
nels becauseof  having  served  at  the  Academy  ten  years,  but  who  had  not  yet  served 
there  as  professors  for  that  period,  could  not  legally  continue  to  be  so  paid,  but  were 
entitled  to  be  paid  as  lieutenant-colonels  only  until  they  had  completed  the  term  of 
special  service  contemplated  by  the  act  of  1879.     (Dig.  J.  A.  Gen.,  p.  615,  par.  1.) 

The  professors  of  the  Military  Academy  do  not  belong  to  the  staff'  of  the  Army 
within  the  meaning  of  section  1205,  Revised  Statutes,  since  they  have  no  military 
rank  or  grade.  The  fact  that  they  are  authorized  by  the  President  to  wear  the  uni- 
form of  the  rank  as  of  which  they  are  paid  does  not  invest  them  with  such  rank. 
This  can  be  given  them  by  Congress  alone.  (Ibid.,  par.  2.) 

A  captain  of  cavalry  does  not  vacate  his  office  as  such  by  the  acceptance  of  that  of 
professor  of  the  Military  Academy,  there  being  no  incompatibility  in  the  functions 
of  the  two  offices.  (Ibid.,  par.  3.) 

The  professors  of  the  Military  Academy  at  West  Point  are  commissioned  officers 
of  the  Army,  whoso  pay  and  allowances  are  assimilated  to  those  of  a  lieutenant- 
colonel  and  a  colonel;  and  in  case  of  such  disability  as  is  described  in  section  4693, 
IJevised  Statutes,  they  are  entitled  to  pensions  at  the  same  rate  with  officers  of  the 
rank  of  lieuteuaut-coloucl.  (17  Opin.  Att.  Gen  ,  359.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  385 


1095.  The  professors  of  the  Military  Academy  at  West  ™611*  of 


Point  are  placed  on  the  same  footing,  as  to  retirement  from    July  is,  g7o,c. 

294,  s.  13,  v.  16,  p. 

active  service,  as  officers  of  the  Army.  si& 

1096.  Each  assistant  professor  and  each  senior  assistant    Assistant  pW- 
instructor  of  cavalry,  artillery,  and  infantry  tactics  shall  Btr'uctors.n 

„  Apr.  29,  1812,  c. 

receive  the  pay  or  a  captain.1  c.  72,3.  2,  v.  2,  p. 

720;  July  5,  1838, 

c.  162,  s.  19,  v.  5,  p.  259;  July  20,  1840,  c.  50,  s.  3,  v.  5,  p.  398;  Aug.  6,  1852,  c.  81,  s.  2,  v.  10,  p. 
29  ;  June  12,  1858,  c.  156,  s  1,  v.  11  p.  333  ;  Feb.  28,  1867,  c.  100,  s.  3,  v.  14,  p  416-  Feb  28 
1873,  v.  17,  p.  479  ;  Jan.  16,  1895,  v.  28,  p.  630.  Sec.  1337,  R.  si 

1097.  That  the  assistant  instructors  of  tactics  command-    Pay  of  assist- 

ant    instructors 

ing  cadet  companies  at  West  Point  shall  receive  the  pay  of  tactics. 
and  allowances  as  assistant  professors  in  the  other  branches  is,  P.  467.' 
of  study.1     Act  of  March  3,  1875  (18  Stat.  £.,  467.) 


1098.  That  the  Secretary  of  War  be  hereby  directed  to 
detail  a  competent  officer  to  act  as  quartermaster  and  com-  of  cadets- 
missary  for  the  battalion  of  cadets,  by  whom  all  purchases 

and  issues  of  supplies  of  all  kinds  for  the  cadets,  and  all    supplies  at 
provisions  for  the  mess,  shall  be  made,  and  that  all  supplies    lug.  7,  we,  v. 
of  all  kinds  and  description  shall  be  furnished  to  the  cadets 
at  actual  cost,  without  any  commission  or  advance  over 
said  cost;  and  such  officer  so  assigned  shall  perform  all  the 
duties  of"  purveying  and  supervision  for  the  mess,  as  now 
done  by  the  purveyor,  without  other  compensation.2    Act 
of  August  7,  1876  (19  Stat.  L.,  126.) 

1099.  The  adjutant  of  the  Military  Academy  shall  have    Adjutant,  pay 
the  pay  of  an  adjutant  of  a  cavalry  regiment.  Mar  3,  issi,  c. 

L     J  J  J  32,s.l,v.9,p.594. 

Sec.  1335,  B.S. 

1100.  The  librarian  and  assistant  librarian  at  the  Mili-    Librarian  and 

assistant. 

tary  Academy  shall  each  receive  one  hundred  and  twenty    Apr.  23,1866,0. 

*   19,  s.  2,  v.  11,  p.  5. 

dollars  a  year  additional  pay.  sec.  13*0,  R.S. 

1101.  The  master  of  the  sword  at  the  Military  Academy  J^j  8  *  e  r  of 
shall  receive  pay  at  the  rate  of  fifteen  hundred  dollars  a  ^jfYVn7'  °; 
year,  with  fuel  and  quarters.  16^ec  ^  u  s>" 

THE   CORPS   OF   CADETS. 

1102.  The  corps  of  cadets  shall  consist  of  one  from  each    cadets,  num- 

-,     -,  .    ,     .     .  ,      m  /.  t>er  and  appoint- 

congressional  district,  one  irom  each  Territory,  one  from  ment  of. 

the  District  of  Columbia,  and  ten  from  the  United  States52,8.a2,'v.5,p.606i 

__  sec.  4,  June  11, 

1  Assistant  professors  at  the  Military  Academy  are  entitled  to  the  quarters  of  cap-     Sec.  1315,  R.  S. 
tains  (9  Opin.  Att.  Gen.,  284).    The  distinction  contended  for  at  the  Military  Academy 
between  academic  and  military  rank  is  not  allowable  in  the  choice  of  quarters.     (5 
Ibid.,  627.) 

'The  annual  appropriation  acts,  since  that  of  March  31,  1884,  have  contained  a  pro- 
vision for  extra  pay  for  the  quartermaster  and  commissary  of  cadets  at  the  rate  of 
$700  per  annum,  in  addition  to  his  pay  as  a  captain  of  infantry.  The  act  of  June  30, 
1892  (22  Stat.  L.,  123),  authorizes  the  Secretary  of  War  to  detail  a  commissary  ser- 
geant to  act  as  assistant  to  the  commissary  of  cadets. 

3  The  animal  acts  of  appropriation  from  that  of  February  18,  1871  (16  Stat.  L.,  414), 
to  that  of  July  26,  1894  (28  Stat.  L.,  156),  contained  a  provision  authorizing  the  pay- 
ment of  $1,000  per  annum  for  compensation  of  the  librarian's  assistant.  In  the  acts 
of  February  12,  1895  (28  Stat.  L.,  631),  and  March  6,  1896(29  Stat.  L.,  49),  the  compen- 
sation of  the  librarian's  assistant  was  fixed  at  $1,200  per  annum. 

1919  -  25 


386  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

at  large.1  They  shall  be  appointed  by  the  President,  and 
shall,  with  the  exception  of  the  ten  cadets  appointed  at 
large,  be  actual  residents  of  the  congressional  or  territorial 
districts,  or  of  the  District  of  Columbia,  respectively,  from 
which  they  purport  to  be  appointed. 

large.  1103.  That  the  cadets  at  large  at  the  Military  Academy 
,  p.  in!  shall  not  hereafter  exceed  ten  in  all,  and  no  new  appoint- 
ments at  large  shall  be  made  until  the  number  of  such 
cadets  heretofore  appointed  falls  below  ten.  But  this  pro- 
vision shall  not  be  held  to  require  the  discharge  of  any 
cadet  heretofore  appointed.  Sec.  4,  act  of  June  11,  1878  (20 
Stat.  L.,  111). 

Appointment     1104,  Cadets  shall  be  appointed  one  year  in  advance  of 
injauneDS'  1866,  the  time  of  their  admission  to  the  Academy,  except  in  cases 
pe3599>  8  Jl  '  '  14'  where,  by  reason  of  death  or  other  cause,  a  vacancy  occurs 
Scc'1317'B*s*  which  cannot   be  provided  for  by  such    appointment  in 
advance;  but  no  pay  or  other  allowance  shall  be  given  to 
any  appointee  until  he  shall  have  been  regularly  admitted, 
as  herein  provided  ;  and  all  appointments  shall  be  condi- 
tional, until  such  provisions  shall  have  been  complied  with. 
^Age  of  appoint-     H05.  Appointees  shall  be  admitted  to  the  Academy  only 
Vi'  v18u'  between  the  ages  of  seventeen  and  twenty-two  years,  except 

1  the  following  case:2  Any  person  who  has  served  honor- 

!The  provision  of  the  act  of  March  3,  1875  (18  Stat.  L.,  467),  authorizing  the  Presi- 
dent "to  fill  any  vacancy  occurring  at  said  Academy  by  reason  of  death,  or  other 
cause,  of  any  person  appointed  by  him  "  was  repealed  by  section  4  of  the  act  of  June 
11,  1878  (20  Stat.  L.,  Ill)  ,  paragraph  1103,  post 

2  Qualifications.—  The  age  for  the  admission  of  cadets  to  the  Academy  is  between 
17  and  22  years.    Candidates  must  be  unmarried,  at  least  5  feet  in  height,  free  from 
any  infectious  or  immoral  disorder,  and  generally  from  any  deformity,  disease,  or 
infirmity  which  may  render  them  unfit  for  military  service.    They  must  be  well 
versed  in  reading,  in  writing,  including  orthography,  in  arithmetic,  and  have  a  knowl- 
edge of  the  elements  of  English  grammar,  ot  descriptive  geography  (particularly  of 
our  own  country),  and  of  the  history  of  the  United  States 

Appointments  —  How  made.  —  Each  Congressional  district  and  Territory,  also  the 
District  of  Columbia,  is  entitled  to  have  one  cadet  at  the  Academy.  Ten  are  also 
appointed  at  large.  The  appointments  (except  those  at  large)  are  made  by  the  Sec- 
retary of  War,  at  the  request  of  the  Representative  or  Delegate  in  Congress  from 
the  district  or  Territory  ;  and  the  person  appointed  must  be  an  actual  resident  of  the 
district  or  Territory  from  which  the  appointment  is  made.  The  appointments  at 
large  are  specially  conferred  by  the  President  of  the  United  States. 

Manner  of  making  applications.—  Applications  can  be  made  at  any  time,  by  letter 
to  the  Secretary  of  War,  to  have  the  name  of  the  applicant  placed  upon  the  register 
that  it  may  be  furnished  to  the  proper  Representative  or  Delegate  wrhen  a  vacancy 
occurs.  The  application  must  exhibit  the  full  name,  date  of  birth,  and  permanent 
abode  of  the  applicant,  with  the  number  of  the  Congressional  district  in  which  his 
residence  is  situated. 

Date  of  appointments.—  Appointments  are  required  by  law  to  be  made  one  year  in 
advance  of  the  date  of  admission,  except  in  cases  where,  by  reason  of  death  or  other 
cause,  a  vacancy  occurs  which  can  not  be  provided  for  by  such  appointment  in  ad- 
vance. These  vacancies  are  tilled  in  time  for  the  next  annual  examination 

Alternates.  -The  Representative  or  Delegate  in  Congress  may  nominate  a  legally 
qualified  second  candidate,  to  be  designated  the  alternate  .  The  alternate  will  receive 
from  the  War  Department  a  letter  of  appointment,  and  will  be  examined  with  the 
regular  appointee,  and  if  duly  qualified  will  be  admitted  to  the  Academy  in  the  event 
of  the  failure  of  the  principal  to  pass  the  prescribed  preliminary  examinations. 
The  alternate  will  not  be  allowed  to  defer  his  reporting  at  West  Point  until  the  result 
of  the  examination  of  the  regular  appointee  is  known,  but  must  report  at  the  time 
designated  in  his  letter  of  appointment.  The  alternate,  like  the  nominee,  should  be 
designated  as  nearly  one  year  in  advance  of  date  of  admission  as  possible. 

There  being  no  provision  whatever  for  the  payment  of  the  traveling  expenses  of 
ither  accepted  or  rejected  candidates  for  admission,  no  candidate  should  fail  to  pro- 
vide himself  in  advance  with  the  means  of  returning  to  his  home  in  case  of  his  rejec- 
tion before  either  of  the  examining  boards,  as  he  may  otherwise  bo  put  to  considerable 
trouble,  inconvenience,  and  even  suffering  on  account  of  his  destitute  condition.  If 


,, 

Sec.  lolo,  K.  n. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      387 

ably  and  faithfully  not  less  than  one  year,  in  either  the  vol- 
unteer or  regular  service  of  the  United  States,  in  the  late 
war  for  the  suppression  of  the  rebellion,  and  who  possesses 
the  other  qualifications  required  by  law,  maybe  admitted 
between  the  ages  of  seventeen  and  twenty-four  years.1 

1106.  Appointees  shall  be  examined  under  regulations  to    Examination 
be  prescribed  from  time  to  time  by  the  Secretary  of  War,  tion. 
before  they  shall  be  admitted  to  the  Academy,  and  sh  all  be  72, 8*3%.  2  P.  721'; 

,    ,      ,  ,,  ,     .  , .  ...  ,          .,,     June  16. 1866,  res. 

required  to  be  well  versed  in  reading,  writing,  and  arith- 49,  v.  u,  p  359. 
metic,  and  to  have  a  knowledge  of  the  elements  of  English 
grammar,  of  descriptive   geography,  particularly  that  of 
the  United  States,  and  of  the  history  of  the  United  States.2 

admitted,  the  money  brought  by  him  to  meet  such  a  contingency  can  be  deposited 
with  the  treasurer  on  account  of  his  equipment  as  a  cadet  or  returned  to  his  friends. 

It  is  suggested  to  all  candidates  for  admission  to  the  Military  Academy  that  before 
leaving  their  place  of  residence  for  West  Point  they  should  cause  themselves  to  be 
thoroughly  examined  by  a  competent  physician  and  by  a  teacher  or  instructor  in 
good  standing.  By  such  an  examination  any  serious  physical  disqualification  or  defi- 
ciency in  mental  preparation  would  be  revealed  and  the  candidate  probably  spared 
the  expense  and  trouble  of  a  useless  journey  and  the  mortification  of  rejection. 

It  should  be  understood  that  the  informal  examination  herein  recommended  is 
solely  for  the  convenience  and  benefit  of  the  candidate  himself  and  can  in  no  manner 
affect  the  decision  of  the  academic  and  medical  examining  boards  at  West  Point. 

See  also,  for  opinions  as  to  the  residence  and  minority  of  candidates  for  appoint- 
ment. Dig.  J.  A.  Gen.,  207-211. 

1  It  being  impossible  for  a  candidate  to  conform  to  the  conditions  of  this  statute, 
it  is  now  obsolete  and  no  longer  operative. 

2  PHYSICAL  EXAMINATION. 

Every  candidate  is  subjected  to  a  rigid  physical  examination,  and  if  there  is  found 
to  exist  in  him  any  of  the  following  causes  of  disqualification  to  such  a  degree  as 
would  immediately  or  at  no  very  distant  period  impair  his  efficiency,  he  is  rejected : 

1.  Feeble  constitution  and  unsound  health  from  whatever  cause;  indications  of 
former  disease;  glandular  swellings  or  other  symptoms  of  scrofula. 

2.  Chronic  cutaneous  affections,  especially  of  the  scalp. 

3.  Severe  injuries  of  the  bones  of  the  head;  convulsions. 

4.  Impaired  vision,  from  whatever  cause;  inflammatory  affections  of  the  eyelids; 
immobility  or  irregularity  of  the  iris;  fistula  lachrymahs,  etc. 

5.  Deafness ;  copious  discharge  from  the  ears. 

6.  Loss  of  many  teeth,  or  the  teeth  generally  unsound. 

7.  Impediment  of  speech. 

8.  Want  of  duo  capacity  of  the  chest,  and  any  other  indication  of  a  liability  to  a  • 
pulmonic  disease. 

9.  Impaired  or  inadequate  efficiency  of  one  or  both  of  the  superior  extremities  on 
account  of  fractures,  especially  of  the  clavicle,  contraction  of  a  joint,  deformity,  etc. 

10.  An  unusual  excurvature  or  incurvature  of  the  spine. 

11.  Hernia. 

12.  A  varicose  state  of  the  veins  of  the  scrotum  or  the  spermatic  cord  (when  large), 
hydrocele,  hemorrhoids,  fistulas. 

13.  Impaired  or  inadequate  efficiency  of  one  or  both  of  the  inferior  extremities  on 
account  of  varicose  veins,  fractures,  malformation  (flat  feet),  lameness,  contraction, 
unequal  length,  bunions,  overlying  or  supernumerary  toes,  etc 

14.  Ulcers  or  unsound  cicatrices  of  ulcers  likely  to  break  out  afresh. 

ACADEMICAL  EXAMINATION. 

Reading.— In  reading,  candidates  must  be  able  to  read  understandingly,  and  with 
proper  accent  and  emphasis. 

Writing  and  orthography.— In  writing  and  orthography  they  must  be  able,  from 
dictation,  to  write  sentences  from  standard  pieces  of  English  literature,  both  prose 
and  poetry,  sufficient  in  number  to  test  their  qualifications  both  in  handwriting  and 
orthography.  They  must  also  be  able  to  write  and  spell  correctly  from  dictation  a 
certain  number  of  standard  test  words. 

Arithmetic. — In  arithmetic  they  must  be  able — 

First.  To  explain  accurately  and  clearly  its  objects  and  the  manner  of  writing  and 
reading  numbers — entire,  fractional,  compound,  or  denominate. 

Second.  To  perform  with  facility  and  accuracy  the  various  operations  of  addition, 
subtraction,  multiplication,  and  division  of  whole  numbers,  abstract  and  compound 
or  denominate,  giving  the  rule  for  each  operation,  with  its  reasons,  and  also  for  the 
different  methods  of  proving  the  accuracy  of  the  work. 

Third.  To  explain  the  meaning  of  reduction,  its  different  kinds,  its  application  to 
denominate  numbers  in  reducing  them  from  a  higher  to  a  lower  denomination  and 


388  THE    MILITARY    LAWS    OF   THE    UNITED    STATES, 

oath.  1107.  Each  cadet  shall,  previous  to  his  admission  to  the 

Aug.  o,  lool,  c. 

42,  s.  8,  v.  12,  p.  Academy,  take  and  subscribe  an  oath  or  affirmation  in  the 

288 ;  <J  UH6  8, 1866, 

c.  no,  s.  2,  v.  u,  following  form : 

'sec.i32o,R.s.     "I,  A  B,  do  solemnly  swear  that  I  will  support  the  Con- 
stitution of  the  United  States,  and  bear  true  allegiance  to 

the  reverse,  and  to  equivalent  decimals;  to  give  the  rule  for  each  case,  with  its  rea- 
sons, and  to  apply  readily  these  rules  to  practical  examples  of  each  kind. 

Fourth.  To  explain  the  nature  of  prime  numbers  and  factors  of  a  number;  of  a 
common  divisor  of  two  or  more  numbers,  particularly  of  their  greatest  common 
divisor,  with  its  use,  and  to  give  the  rule,  with  its  reasons,  for  obtaining  it ;  also  the 
meaning  of  a  common  multiple  of  several  numbers,  particularly  of  their  least  com- 
mon multiple  and  its  use,  and  to  give  the  rule,  with  its  reasons,  for  obtaining  it,  and 
to  apply  each  of  these  rules  to  examples. 

Fifth.  To  explain  the  nature  of  fractions,  common  or  vulgar,  and  decimal ;  to  define 
the  various  kinds  of  fractions,  with  the  distinguishing  properties  of  each;  to  give 
all  the  rules  for  their  reduction,  particularly  from  mixed  to  improper  and  the  reverse, 
from  compound  or  complex  to  simple,  to  their  lowest  terms,  to  a  common  denomi- 
nator, from  common  to  decimal  and  the  reverse;  for  their  addition,  subtraction,  mul- 
tiplication, and  division,  with  the  reason  for  each  change  of  rule,  and  to  apply  each 
rule  to  examples. 

Sixth.  To  define  the  terms  "ratio"  and  "proportion;"  to  give  the  properties  of  pro- 
portion and  the  rules  and  their  reasons  for  stating  and  solving  questions  in  both 
simple  and  compound  proportion,  or  single  and  double  rule  of  three,  aud  to  apply 
these  rules  to  examples. 

Seventh.  The  candidates  must  not  only  know  the  principles  and  rules  referred  to 
above,  but  they  are  required  to  possess  such  a  thorough  understanding  of  all  the 
fundamental  operations  of  arithmetic  as  will  enable  them  to  combine  the  various 
principles  in  the  solution  of  any  complex  problem  which  can  be  solved  by  the  methods 
of  arithmetic.  In  other  words,  they  must  possess  such  a  complete  knowledge  of 
arithmetic  as  will  enable  them  to  take  up  at  once  the  higher  branches  of  mathematics 
without  further  study  of  arithmetic. 

Eighth.  It  is  to  be  understood  that  the  examination  in  these  branches  may  be  either 
written  or  oral,  or  partly  written  and  partly  oral ;  that  the  definitions  and  rules  must 
be  given  fully  and  accurately,  and  that  the  work  of  all  examples,  whether  upon  the 
blackboard,  slate,  or  paper,  must  be  written  plainly  and  in  full,  and  in  such  a  manner 
as  to  show  clearly  the  mode  of  solution. 

Grammar. — In  English  grammar  candidates  must  be  able — 

First.  To  define  the  parts  of  speech  and  give  their  classes  and  properties;  to  give 
inflections,  including  declension,  conjugation,  and  comparison;  to  give  the  corre- 
sponding masculine  and  feminine  gender  nouns ;  to  give  and  apply  the  ordinary  rules 
of  syntax. 

Second.  To  parse  fully  and  correctly  any  ordinary  sentence,  omitting  rules,  declen- 
sions, comparisons,  and  principal  parts,  but  giving  the  subject  of  each  verb,  the 
governing  word  of  each  objective  case,  the  word  for  which  each  pronoun  stands  or 
to  which  it  refers,  the  words  between  which  each  preposition  shows  the  relation, 
precisely  what  each  conjunction  connects,  what  each  adjective  and  adverb  qualifies 
or  limits,  the  construction  of  each  infinitive,  and  generally  showing  a  good  knowl- 
edge of  the  function  of  each  word  in  the  sentence.  Omissions  will  be  taken  to  indi- 
«  cate  ignorance. 

Third.  To  correct  in  sentences  or  extracts  any  ordinary  grammatical  errors,  such 
as  are  mentioned  and  explained  in  ordinary  grammars. 

It  is  not  required  that  any  particular  grammarian  or  text-book  shall  be  followed, 
but  rules,  definitions,  parsing,  and  corrections  must  be  in  accordance  with  good 
usage  and  common  sense.  The  examination  may  be  written  or  oral,  or  both  written 
and  oral. 

Geography. — Candidates  will  be  required  to  pass  a  satisfactory  examination,  written 
or  oral,  or  both,  in  geography,  particularly  of  our  own  country.  To  give  a  candidate 
a  clear  idea  of  what  is  required,  the  following  synopsis  is  added  to  show  the  charac- 
ter and  extent  of  the  examination.  Questions  are  likely  to  be  asked  involving  knowl- 
edge of— 

First.  Definitions  of  the  geographical  circles,  of  latitude  and  longitude,  of  zones, 
and  of  all  the  natural  divisions  of  the  earth's  surface,  as  islands,  seas,  capes,  etc. 

Second.  The  continental  areas  and  grand  divisions  of  the  water  of  the  earth's 
surface. 

Third.  The  grand  divisions  of  the  land — the  large  bodies  of  water  which  in  part 
or  wholly  surround  them. 

Their  principal  mountains— location,  direction,  and  extent. 

The  capes — from  what  parts  they  project  and  into  what  waters. 

Their  principal  peninsulas— location,  and  by  what  waters  are  they  embraced. 

The  parts  connected  by  an  isthmus,  if  any. 

Their  principal  islands — location  and  surrounding  waters. 

The  seas,  gulfs,  and  bays— the  coasts  they  indent  and  the  waters  to  which  they  are 
subordinate. 

The  straits — the  lands  they  separate  and  the  waters  they  connect. 

Their  principal  rivers— their  sources,  directions  of  flow,  and  the  waters  into  which 
they  empty. 

Their  principal  lakes— location  and  extent. 

Fourth.  The  political  divisions  of  the  grand  divisions — their  names,  locations, 
boundaries,  and  capitals. 

General  questions  of  the  same  character  as  indicated  in  the  second  section,  made 
applicable  to  each  of  the  countries  of  each  of  the  grand  divisions. 

Fifth.  The  United  States. 

The  candidate  should  be  thoroughly  informed  as  to  its  general  features,  configu- 


THE   MILITARY  LAWS   OF   THE   UNITED   STATES.  389 

the  National  Government;  tbat  I  will  maintain  and  defend 
the  sovereignty  of  the  United  States,  paramount  to  any 
and  all  allegiance,  sovereignty,  or  fealty  I  may  owe  to  any 
State,  county,  or  country  whatsoever;  and  that  I  will  at 
all  times  obey  the  legal  orders  of  my  superior  officers,  and 
the  rules  and  articles  governing  the  armies  of  the  United 
States." 

And  any  cadet  or  candidate  for  admission  who  shall  re- 
fuse to  take  this  oath  shall  be  dismissed  from  the  service.1 

ration,  location,  and  boundaries  (both  with  respect  to  neighboring  countries  and  lat- 
itude and  longitude) ;  its  adjacent  oceans,  seas,  bays,  gulfs,  sounds,  straits,  and 
islands ;  its  mountain  ranges,  their  location  and  extent ;  the  sources,  directions,  and 
terminations  of  the  important  rivers  and  their  principal  tributaries;  the  lakes,  and 
in  short  every  geographical  feature  of  the  country  as  indicated  above.  The  location 
and  termination  of  important  railroad  lines  and  other  means  of  communication  from 
one  part  of  the  country  to  another  should  not  be  omitted. 

The  States  and  Territories  are  to  be  accurately  located  with  respect  to  each  other 
by  their  boundaries,  and  as  to  their  order  along  the  Atlantic  coast,  the  Gulf  of  Mexico, 
the  Pacific  coast,  the  northern  frontier,  the  Mexican  frontier,  and  the  Mississippi, 
Missouri,  and  Ohio  rivers. 

The  boundary  and  other  large  rivers  of  each  State,  as  well  as  all  other  prominent 
geographical  features,  should  be  known. 

The  names  and  locations  of  their  capitals  and  other  important  cities  and  towns  are 
likewise  to  be  known. 

In  short,  the  knowledge  should  be  so  complete  that  a  clear  mental  picture  of  the 
whole  or  any  part  of  the  United  States  is  impressed  on  the  mind  of  the  candidate. 
More  weight,  is  attached  to  a  knowledge  of  the  geography  of  the  United  States  than 
to  that  of  all  other  countries  combined. 

History. — The  candidate  should  make  himself  familiar  with  so  much  of  the  history 
of  the  United  States  as  is  contained  in  the  ordinary  school  histories.  The  examina- 
tion may  be  written  or  oral,  or  partly  written  and  partly  oral,  and  will  usually  con- 
sist of  a  series  of  questions  similar  to  the  following: 

1.  Name  the  earliest  European  settlements  within  the  present  limits  of  the  United 
States— when,  where,  and  by  whom  made.     When  did  the  settlements  made  by  other 
nations  than  the  English  come  under  the  dominion  of  Great  Britain  and 'of  the 
United  States  ? 

2.  What  was  the  difference  between  the  royal,  the  chartered,  and  the  proprietary 
colonies?    How  many  colonies  were  there  originally  in  Massachusetts  and  Connecti- 
cut?   When  were  they  united?    How  many  in  Pennsylvania?     When  were  they 
separated  ? 

3.  In  what  wars  were  the  colonies  engaged  before  the  Revolution?    What  were 
the  principal  events  and  results  of  those  of  King  William,  Queen  Anne,  King  George, 
and  the  French  and  Indian  ? 

4.  What  were  the  remote  and  the  immediate  causes  of  the  American  Revolution  ? 
Explain  the  navigation  act,  stamp  act,  writs  of  assistance.    When  did  the  war  of 
the  Revolution  properly  begin?    When,  where,  and  how  did  ic  end?    Give  the  par- 
ticulars of  Arnold's  treason.    Who  were  the  most  prominent  generals  in  this  war? 
Name  the  most  important  battles  and  their  results. 

5.  The  Constitution  of  the  United  States — why  and  when  was  it  formed?    When 
was  It  adopted? 

6.  Give  the  names  of  the  Presidents  of  the  United  States  in  their  order.    Give  the 
leading  events  of  the  Administration  of  each  one;  for  example,  that  of — 

Washington:  Indian  war;  trouble  with  France;  Jay's  treaty;  the  whisky  rebel- 
lion, etc. 

Jefferson:  War  with  Tripoli;  purchase  of  Louisiana;  the  embargo, etc. 

Madison:  AVar  of  1812;  its  causes;  the  principal  battles  on  land  and  sea;  pecul- 
iarity of  its  last  battle ;  when  ended,  etc. 

Monroe ;  Indian  war ;  cession  of  Florida ;  Missouri  compromise,  etc. 

Jackson:  Black  Hawk  and  Seminole  wars;  the  United  States  Bank;  nullifica- 
tion, etc. 

Polk:  The  Mexican  war;  its  causes;  principal  battles;  results  of  it,  etc. 

Pierce :  Repeal  of  Missouri  compromise ;  troubles  in  Kantjas,  etc. 

Buchanan:  Civil  war;  how  begun,  etc. 

Lincoln:  War  of  the  rebellion ;  its  causes;  its  results,  social  and  political;  explain 
doctrine  of  State  sovereignty;  alienation  between  Northern  and  Southern  States; 
doctrine  of  secession;  give  account  of  principal  battles. 

Johnson:  Fourteenth  amendment;  tenure  of  office  bill;  Johnson's  impeachment. 

Grant:  Fifteenth  amendment;  Alabama  claims  and  Treaty  of  Washington ;  Elect- 
oral Commission. 

1 A  person  appointed  to  a  position  in  the  Army,  either  as  a  cadet  or  an  officer,  be- 
comes a  cadet  or  officer  de  facto  when  he  accepts  the  appointment;  but,  in  view  of 
the  act  of  July  2, 1862  (12  Stat.  L.,  502),  his  pay  can  not  commence  until  he  takes  the 
oath  of  office.  *  When  a  candidate  passes  the  examinations  and  enters  upon  the  duties 
of  a  cadet,  he  thereby  accepts  his  appointment,  and  his  service  in  the  Army  begins 
for  all  purposes  of  longevity,  but  his  pay  can  not  commence  until  betakes  the  oath  of 
office  required  by  law.  (?>  Dig.  Compt.  Dec.,  231.)  The  requirements  of  section  1310, 
of  the  Revised  Statutes,  that  ''no  person  who  has  served  in  any  capacity  in  the  military 
or  naval  service  of  the  so-called  Confederate  States,  or  of  either  of  the  States  in 
insurrection  during  the  late  rebellion  shall  be  appointed  a  cadet,"  were  repealed  by 
the  act  of  March  31, 1896  (29  Stat.  L.,  84), 


390  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

fo?segrvfcement     1108'  EacQ  cadet  shall  sign  articles,  with  the  consent  of 
Apr.  ^,  1812,  o.hj|j  parents  or  guardian  if  he  be  a  minor,  and  if  any  he 

July  5,'  i838,c.i62,'  have,  by  which  he  shall  engage  to  serve  eight  years  unless 

'sec.  1321,  B.'S.  sooner  discharged. 
Pay  of  cadets.      1109.  Hereafter  no  cadet  shall  receive  more  than  at  the 

22Jpni233!)M8a8r2'T'rate  of  five  hundred  and  forty  dollars  a  year.1 

1893,'  v.  27,  p.  5  is.'  Sec.  1339,  It.  S. 

Graduates  to  be     mQ  That  when  anv  cadet  of  the  United  States  Military 

commissioned,  <T 

if  competent,  in  Academv  has  gone  through  all  its  classes  and  received  a 

any  arm  or  corps  *  ° 

in  which  vacancy  regular  diploma  from  the  academic  staff,  he  may  be  pro- 
TO  be  addi-  moted  and  commissioned  as  a  second  lieutenant  in  any  arm 

tional     second  .-i.-in  -i  -i 

lieutenants  if  no  or  corps  of  the  Army  in  which  there  may  be  a  vacancy  and 
v&May  17^886%.  the  duties  of  which  he  may  have  been  judged  competent  to 
24sec?i2i3,B.s.  perform  ;  and  in  case  there  shall  not  at  the  time  be  a  vacancy 
in  such  arm  or  corps,  he  may,  at  the  discretion  of  the  Pres- 
ident, be  promoted  and  commissioned  in  it  as  an  additional 
second  lieutenant,  with  the  usual  pay  and  allowances  of  a 
second  lieutenant,  until  a  vacancy  shall  happen.2    Act  of 
May  17,  1886  (24  Stat.  £.,  50). 

UH.  Only  one  supernumerary  officer  shall  be  attached 
eac\ecaotmpcany.toto  any  company  at  the  same  time  under  the  provisions  of 
2,PV72if  Aug2'!,'  the  preceding  section. 

1854,  v.  10,  p.  575.'    Sec.1215,  R.  S. 

1112.  That  every  cadet  who  has  heretofore  graduated  or 


ion. 


f 

gradation.        may  hereafter  graduate  at  the  West  Point  Military  Acad- 

24^pe.C352i°'  1886'  v*  emy,  and  who  has  been  or  may  hereafter  be  commissioned 
a  second  lieutenant  in  the  Army  of  the  United  States, 
under  the  laws  appointing  such  graduates  to  the  Army, 
shall  be  allowed  full  pay  as  second  lieutenant  from  the  date 
of  his  graduation  to  the  date  of  his  acceptance  of  and  qual- 
ification under  his  commission  and  during  his  graduation 
leave,  in  accordance  with  the  uniform  practice  which  has 
prevailed  since  the  establishment  of  the  Military  Academy. 
Act  of  December  20,  1886  (24  Stat.  L.,  351). 

cadet  battai-     1113.  The  corps  of  cadets  shall  be  arranged  into  com- 
A  r  29  1812  c  Panies?  according  to  the  directions  of  the  superintendent, 

72,  s.3,  v.i  p.  721  ;  each  of  which  shall  be  commanded  by  an  officer  of  the 

July  13,  1866,  c.  ___  _  _ 
176,  s.  6,  v.  14,  p.  i  ^  person  appointed  to  a  position  in  the  Army,  either  as  a  cadet  or  an  officer,  be- 
«  iw>  R  «  comes  a  cadet  or  officer  de  facto  when  he  accepts  the  appointment;  but,  in  view  of 
K.  B.  tne  act  of  Julv  2i  J862  (12  Stat.  L.,  502),  his  pay  can  not  commence  until  he  takes  the 
oath  of  office.  When  a  candidate  passes  the  examinations  and  enters  upon  the  duties 
of  a  cadet,  he  thereby  accepts  his  appointment,  and  his  service  in  the  Army  begins 
for  all  purposes  of  longevity,  but  his  pay  can  not  commence  until  he  takes  the  oath  of 
office  required  by  law.  (3  Dig.  Compt.  Dec.,  231.)  The  requirements  of  section  1310, 
of  the  Revised  Statutes,  that  '  '  no  person  who  has  served  in  any  capacity  in  the  military 
or  naval  service  of  the  so-called  Confederate  States,  or  of  either  of  the  States  in 
insurrection  during  the  late  rebellion  shall  be  appointed  a  cadet,"  were  repealed  by 
the  act  of  March  31,  1896  (29  Stat.  L.,  84). 

2The  requirement  of  section  3  of  the  act  of  June  18,  1878  (20  Stat.  L.,  150),  "That 
hereafter  all  vacancies  in  the  grade  of  second  lieutenant  shall  be  filled  by  appoint- 
ment from  the  graduates  of  the  Military  Academy  so  long  as  any  such  remain  in 
service  unassigned  ;  and  any  vacancies  thereafter  remaining  shall  be  filled  by  promo- 
tion of  meritorious  non-commissioned  officers  of  the  Army,  recommended  under  the 
provisions  of  the  next  section  of  this  act:  Provided.  That  all  vacancies  remaining, 
after  exhausting  the  two  classes  named,  may  be  filled  by  appointment  of  persons  in 
civil  life,  "  was  repealed  by  section  5  of  the  act  of  July  30,  1892  (27  Stat.  L  .,  336)  .  See 
chapter  entitled  COMMISSIONED  OFFICERS. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  391 


Army,  for  the  purpose  of  military  instruction.  To  each 
Company  shall  be  added  four  musicians.  The  cotps  shall 
be  taught  and  trained  in  all  the  duties  of  a  private  soldier, 
non-commissioned  officer,  and  officer,  shall  be  encamped  at 
least  three  months  in  each  year,  and  shall  be  taught  anc*. 
trained  in  all  the  duties  incident  to  a  regular  camp. 

1114.  Cadets  shall  be  subject  at  all  times  to  do  duty    where  to  do 

in  such  places  and  on  such  service  as  the  President  may  dlffii'r.  ie,  1802,  c. 
, .       ,  9,  s.  27,  v.  2.  p.m. 

direct.  Sec.l323,R.S. 

1115.  The  Secretary  of  War  shall  so  arrange  the  course    NO  studios  on 
of  studies  at  the  Academy,  that  the  cadets  shall  not  be  re-  Tula's,  ISTO,  c. 

,'   ,  ,,      .  ,.  294,  s.' 21,  v.  16.  p. 

quired  to  pursue  their  studies  on  Sunday.  319. 

Sec.  13-24,  U.S. 

1116.  No  cadet  who  is  reported  as  deficient,  in  either  con-  de*)8eficient   ca' 
duct  or  studies,  and  recommended  to  be  discharged  from    Aug.  3,  i86i,  c. 
the  Academy,  shall,  unless  upon  recommendation  of  the  288.8' 
academic  board,  be  returned  or  re-appointed,  or  appointed 

to  any  place  in  the  Army  before  his  class  shall  have  left 
the  Academy  and  received  their  commissions.1 

1117.  Hereafter  any  cadet  dismissed  for  hazing  shall  not    Hazing;    pen- 
be  eligible  to  reappointment.2    Act  of  March  31 , 1884  (2S&^-  si,  ISM, 
8tat.  L.,  7). 

COURTS-MARTIAL. 

1118.  The  superintendent  of  the  Military  Academy  shall    Courts-martial 

,  ,  . .    ,    „        . ,        .    .    ,  for   trial  of    ca- 

have  power  to  convene  general  courts  martial  for  the  trial  dots. 

of  cadets,  and  to  execute  the  sentences  of  such  courts,  ex- 270,  v.  IT,'P.  604.  ' 

cept  the  sentences  of  suspension  and  dismission,  subject  to 

the  same  limitations  and  conditions  now  existing  as  to 

other  general  courts-martial.3 

1  Where  a  cadet  was,  by  order  of  the  Secretary  of  War,  on  the  recommendation  of 
the  Academic  Board,  discharged  from  the  Military  Academy  for  deficiency  in  studies : 
Held,  (1)  that  the  order  of  discharge,  having  been  completely  executed,  is  beyond  the 
power  of  revocation ;  (2)  that  section  1325,  Revised  Statutes,  prohibits  the  returning 
or  reappointing  of  the  cadet  to  the  Academy,  except  upon  the  recommendation  of 
the  Academic  Board;  (3)  that  Congress  may  thus  limit  or  restrict  the  authority  of 
the  President  to  appoint  cadets;  (4)  that  accordingly  it  is  not  competent  for  the 
President  to  revoke  the  said  order  or  to  restore  the  cadet  to  the  Academy,  irrespec- 
tive of  the  recommendation  of  the  Academic  Board.     (17  Opin.  Att.  Gen.,  67.) 

2  In  a  case  arising  at  the  Naval  Academy,  under  the  act  of  June  23,  1874,  it  was 
held  by  the  Attorney- General  (18  Opin.  Att.  Gen.,  292)  that  the  offense  of  hazing,  not 
being  an  offense  at  the  common  law,  and  not  being  denned  by  statute,  the  definition 
of  the  offense  must  be  gleaned  from  the  rules  and  regulations  of  the  Naval  Academy 
that  were  in  force  at  the  date  of  the  passage  of  the  act  in  question.    It  was  also  held 
"that,  to  constitute  the  offense  of  hazing  under  the  statute,  it  is  essential  that  the 
victim  of  the  maltreatment  should  be  a  new  cadet  of  the  fourth  class." 

Where  a  cadet  entered  the  Naval  Academy  and  became  a  member  of  the  fourth 
class  in  1885,  and  also  remained  a  member  of  the  same  class  in  1886,  he  is  at  the  latter 
period  as  much  an  "  older  cadet"  within  the  definition  of  the  offense  of  "hazing"  as 
a  cadet  who,  having  entered  the  Academy  at  the  same  time  (1885),  has  since  oeen 
advan  ed  to  a  higher  class,  and  (equally  with  the  latter)  is  capable  of  committing 
that  offense.  (18  Opin.  Att.  Gen.,  507.) 

3The  undergraduate  cadets  are  not  commissioned  officers,  and  are,  therefore,  not 
competent  to  sit  on  a  court-martial,  and  are  triable  by  a  regimental  or  garrison 
court-martial.  (7  Opin.  Att.  Gen.,  323.)  In  their  internal  academic  organization  as 
officers,  noncommissioned  officers,  and  privates,  they  are  not  subject  to  the  Articles 
of  War  as  respects  their  relation  to  one  another,, but  only  as  respects  their  relation 
to  commissioned  officers  of  the  Army,  on  duty  as  such  at  the  Academy.  (Ibid.) 

Cadets  are  amenable  to  trial  by  couit-martial  for  Violations  of  the  regulations  of 
the  Academy,  as  "conduct  to  the  prejudice  of  good  order  and  military  discipline." 
(Dig.  J.  A.  Gen.,  210,  par.  8.) 

ACADEMIC  REGULATIONS. 

The  regulations  of  the  Military  Academy  may  be  altered  by  the  Secretary  of  War 
with  the  approbation  of  the  President. .  (1  Opin.  Att.  Gen.,  469.) 


392  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

THE   BOARD   OF   VISITORS. 

Board  of  visit-     H19.  There  shall  be  appointed  every  year,  in  the  follow- 
Aug.  s,  1848,  c.  ing  manner,  a  board  of  visitors,  to  attend  the  annual  ex- 

96,  s.  2,  v.  9,  p.  71 ; 

Mar.  16,  1868,  c. amination  of  the  Academy:   Seven  persons  shall  be  ap- 
Feb."1^ i?  1870,' 4'c!  pointed  by  the  President,  and  two   Senators  and  three 
18seo!io2V!7R.  s.  members  of  the  House  of  Representatives  shall  be  desig- 
nated as  visitors,  by  the  Vice-President,  or  President  pro 
tempore  of  the  Senate,  and  the  Speaker  of  the  House  of 
Representatives,  respectively,  at  the  session  of  Congress 
next  preceding  such  examination. 

Duties  of  visit-     1120.  It  shall  be  the  duty  of  the  board  of  visitors  to  iu- 
A'US.  8, 1848,  c.  quire  into  the  actual  state  of  the  discipline,  instruction, 

96,  s.  2,  v.  9.  p.  71 ;  M 

Feb.  21,  i87o,  c.  police  administration,  fiscal  affairs,  and  other  concerns  of 
sec.  1328,  R.S.  the  Academy.  The  visitors  appointed  by  the  President 
shall  report  thereon  to  the  Secretary  of  War,  for  the  infor- 
mation of  Congress,  at  the  commencement  of  the  session 
next  succeeding  such  examination,  and  the  Senators  and 
Eepresentatives  designated  as  visitors  shall  report  to  Con- 
gress, within  twenty  days  after  the  meeting  of  the  session 
next  succeeding  the  time  of  their  appointment,  their  action 
as  such  visitors,  with  their  views  and  recommendations 
concerning  the  Academy. 
corapensatioTi.  1121,  No  compensation  shall  be  made  to  the  members  of 

96,  s.  2,'v.'9,  p.  7i "  said  board  beyond  the  payment  of  their  expenses l  for  board 

JTeb.2 1,1870,0.18,          _  _      _  '      J  . 

v.ie,  p.  67;  Mar.  and  lodging  while  at  the  Academv,  and  an  allowance,  not 

3,  1877,  c.  109,  v.  . 

19,  p.  382.  exceeding  eight  cents  a  mile,  for  traveling  by  the  shortest 

'mail-route  from  their  respective  homes  to  the  Academy, 

and  thence  to  their  homes.2 
compensation.     1122.  Hereafter  the  expenses  allowed  by  section  thirteen 

v.  20,  p.  no.  '  hundred  and  twenty-nine  of  the  Revised  Statutes  shall  be 
paid  as  follows :  each  member  of  the  Board  of  Visitors  shall 
receive  not  exceeding  eight  cents  per  mile  for  each  mile 
traveled  by  the  most  direct  route  from  his  residence  to 
West  Point  and  return,  and  shall  in  addition  receive  five 
dollars  per  day  for  expenses  during  each  day  of  his  service 
at  West  Point.2  Act  of  June  11,  1878  (20  Stat.  L.,  110). 

MISCELLANEOUS   PROVISIONS. 

ence*ve9  °f  ab"  H23-  Leave  of  absence  may  be  granted  by  the  superin- 
E(J8Ul67  2v  i3864'  ten(lent,  under  regulations  prescribed  by  the  Secretary  of 
4i6.'  'War,  to  the  professors,  assistant  professors,  instructors, 

Sec.  1330,  R.S.  ' _ 

1  The  amount  payable  under  this  paragraph  for  expenses  is,  by  the  act  of  June  11 
1878  (par.  1122,  post),  limited  to  $5  per  day. 

2  Under  section  1339  of  the  Revised  Statutes,  as  amended  by  the  acts  of  March  3, 
1877  (19  Stat.  L.,  382),  and  June  11,  1878  (20  Stat,  L.,  110),  the  mileage  of  the  Board  of 
Visitors  must  be  computed  by  "the most  direct  route"  from  their  respective  homes 
to  West  Point  and  return,  and  not  by  the  "shortest  mail  route."    (3  Dig.  Compt. 
Dec.,  216.) 


THE   MILITARY    LAWS    OF   THE   UNITED   STATES.  393 

and  other  officers  of  the  Academy,  for  the  entire  period  of 
the  suspension  of  the  ordinary  academic  studies,  without 
deduction  from  pay  or  allowances. 

1124.  The  Secretary  of  the  Senate  shall  furnish  annually  ,  Concession ai 

J  *  documents  to 

to  the  library  of  the  Academy  one  copy  of  each  document  library. 

Apr.  23,  1856,  c. 

published,  during  the  preceding  year,  by  the  Senate.  19,  s.  3,  v.  11,  P.  5. 

1125.  The  libraries  of  the  eight  Executive  Departments,    Government 
of  the  United  States  Military  Academy,  and  United  States  ^ec^j^n.  12, 

~T          ,     ,          ,  ,  ,  ...  j     ,  ,      ,    ,  .    1895,  v.  28,  p.  624. 

Naval  Academy  are  hereby  constituted  designated  deposi- 
tories of  Government  publications,  and  the  superintendent 
of  documents  shall  supply  one  copy  of  said  publications,  in 
the  same  form  as  supplied  to  other  depositories,  to  each  of 
said  libraries.  Sec.  98,  act  of  January  12,  1895  (28  Stat. 
L.,  624}. 

1126.  For  increase  and  expense  of  the  library,  namely:    Purchases  for 
For  periodicals,  stationery,  binding  books,  and  scientific,  * MaTe,  1896, v. 
historical,  biographical,  and  general  literature,  to  be  pur- ?9' p' 5 
chased  in  open  market  on  the  written  order  of  the  Superin- 
tendent, [two  thousand  dollars].1     Act  of  March  6, 1896  (29 

8tat.  L.,  52). 

1127.  That  all  technical  and  scientific  supplies  for  the    Purchases  of 
departments  of  instruction  of  the  Military  Academy  shall  technical  sup- 
be  purchased  by  contract  or  otherwise,  as  the  Secretary  ofpMar.6,  1896,  v. 
War  may  deem  best.1      Act  of  March  6,  1896  (29  Stat.29'p'52' 
L.,52). 

JThe  annual  acts  of  appropriation  since  that  of  May  1,  1888  (25  Stat.L.,  112)  have 
contained  this  provision. 

CLERKS  AND  EMPLOYEES. 

The  employment  of  clerical  and  other  services  is  regulated  by  the  annual  acts  of 
appropriation.  That  of  March  6,  1896,  contains  provifion — 

For  pay  of  the  master  of  the  sword,  one  thousand  five  hundred  dollars ;  (a) 

For  pay  of  one  teacher  of  music,  one  thousand  and  eighty  dollars ;  (a) 

For  clerk  to  the  disbursing  officer  and  quartermaster,  one  thousand  five  hundred 
dollars ; 

For  clerk  to  adjutant  in  charge  of  cadet  records,  one  thousand  five  hundred 
dollars ; 

For  one  clerk  to  the  adjutant,  one  thousand  dollars ; 

For  clerk  to  treasurer,  one  thousand  five  hundred  dollars ; 

For  one  clerk  to  the  quartermaster,  one  thousand  dollars; 

For  pay  of  librarian's  assistant,  one  thousand  two  hundred  dollars; 

For  pay  of  one  superintendent  of  gas  works,  one  thousand  five  hundred  dollars; 

For  pay  of  engineer  of  heating  and  ventilating  apparatus  for  the  academic  huild- 
ing,  the  cadet  barracks  and  office  building,  cadet  hospital,  chapel,  and  philosophical 
huilding,  including  the  library,  one  thousand  five  hundred  dollars; 

For  pay  of  assistant  engineer  of  same,  one  thousand  dollars; 

For  pay  of  eight  firemen,  four  thousand  eight  hundred  dollars ; 

For  pay  of  one  draftsman  in  department  of  civil  and  military  engineering,  one 
thousand  dollars; 

For  pay  of  mechanic  employed  in  chemical  and  geological  section  rooms  and  in 
lecture  rooms,  one  thousand  dollars ; 

For  pay  of  mechanic  assistant  in  department  of  natural  and  experimental  philoso- 
phy, one  thousand  dollars; 

For  pay  of  custodian  of  new  Academy  huilding,  one  thousand  dollars ; 

For  pay  of  one  electrician,  nine  hundred  dollars; 

For  pay  of  one  civilian  plumber,  nine  hundred  dollars; 

For  pay  of  one  scavenger,  at  sixty  dollars  a  month,  seven  hundred  and  twenty 
dollars ; 

For  compensation  of  chapel  organist,  two  hundred  dollars ; 

In  all,  for  civilians  employed  at  the  Military  Academy,  twenty-five  thousand  eight 
hundred  dollars. 

a  Th  is  salary  is  fixed  by  law.    See  paragraph  1101,  supra. 


.'V.I  I  TIIK     MIUTAKV    LAWS    <>!•'    TIIK    MMTI'.I)    STATUS. 

^  "n(l""1|'  ',','       1128.    l<'or  contingencies  lor  Superintendent   of  I  he   Acad 
ttj  cm\  .    <>ne    thousand     dollars.1        Art    of   March    '/,    !*!>< 

ISlfir,  0,  lHlWi(v. 


,     ,  (. 

.....  •  II  .S'M/.  /... 

1  "'  1129.  Tim!  all  funds  arising  from  I  he  rent  of  I  In-  hold  on 
1',,1HHNlj;|NI.-  Acadcmx  grounds,  and  other  incidental  sources,  from  and 
r,  ST,  p!  after  this  date  be,  and  air  hereby,  made  a  special  con 


, 
| 


lin^cnt  fund,  lo  be  expended  under  the  supervision  of  the 
Superintendent  of  I  he  Academy,  and  thai  he  be  required 
to  arronnt  lor  the  same,  annually,  aeeompamed  by  proper 
Vouchers  lo  I  lie  Seerefary  of  War.  Act  of  Mtti/  /,  1888 
Xt<il.  I..,  //-.').  rroriilwl,  That  all  pi'oeeeds  of  (he  sale 
of  #as  sliall  be,  paid  into  (he  post  Innd.  Act  of  March  /, 
1893  (27  Mat.  /,.,  r>x<)). 

Mil    II    MM       \CADKMV     MAND. 

Hflitnn    \'  -I        1130.   Tliere  shall  be  retained  or  enlisted  in  the  Army  one 

"xr.'.'i'm.  K.S.  band,  \vhieh  shall  eonsist,  of  one  l);uid  hauler,  and  not  more 

I  han   t\v«-n<y  lour  musicians,  and   sliall  ordinarily  be  sta- 

tionetl  at  the    Military  Academy. 

.r,;,;,.".1,,1',;';!;',        1131.   The   lea.lerof  the   band    stationed    at    the    Military 
\  'Nj  ^   Acadein\   shall  i'<M-eive  ninety  dollars  a  month.1 

I-J7S,H.S. 

OompottttM  of  1132.  That  the  Military  Academy  band  sliall  consist  of 
BM',!,  Mar  :i,  one  teacher  o!'  music,  who  shall  be  leader  of  the  band,  for 
the  lineal  \ear  ending  .lune  thirtieth,  eighteen  hundred  and 
se\enl\  ei^ht,  and  may  be  a  civilian,  and  of  twenty  four 
enlisted  musicians  of  tin1  band.  A>Vr.  '.',  act  of  March  ..',  t8D 
(IH  ,S7/f/.  /,.,  -V.SYJ). 

i'i,y,,n,..ii.,i          1133.  That  the  tcaclicr  of  music  shall  receive  ninety  dol 
UT7,  T,il,p.l       IftK     per  month,'  om>  ration,  and  the  allowance  of  tuel  of  a 
second    lieutenant  of  the    Army;  and    that  of  the  enlisted 
musicians  of  the   band   six   shall  each  be  paid  thirty-four 

1  \  n  \  .ippiiipi  1.  1  1  M.II  l.u  roiltlliiM-ncic  i  Inr  t  lie  Sll|M'rilltt>li(li'llt  ()!'  tlir  M  ililarv  \r;nl 
<-in\  IM  iiviiiliildr  lor  Niirli  OMUUeXp6BtM  us  jiro  nrj-cHsnrv,  or  at  IOIIH)  ai)pr«t|>riiili« 

Mill)     full\  cllli  III      in     utili-i      I.-     tin-     p.   I  I..  I  Mi.  ill.'.  •   nl     liic     .lull.-.    I.,|IUI.-.I     Ii\    l.l\\    (if    ill.' 

Siipn  iiilfiiilriil.      "      *  I'lir   .  .  rl  ilu-ali-  nl    Ilio  Siipfriiilfiiilciit,  as   In  I  ln>  rnrn-cl 

nrHH  and  ,|UMint>ss  of  rxpi-miii  UIVM  iVoni  tho  Appruprlatlun  tor  continc^uoies  for  said 

Superintendent    IM:I\    In-  ;u.  rpli  il   m  llM-ailjn  -«liiu<nl  anil  Hcttlcini'lit  i>T  M  ilil.il 

riii\    a.-i-nuiilH         (It  bi^   <'oinpl      Per      '.Ml'.  I        I'lm  pru\  isuui    has  IICIMI  i  vp.  :it  .'(I    illlht* 

annual  ApprOprfatlOD  ftOUfrOm  thlltOf  lM-l«ruai\   -.'    ISC.'.i.  In  thai  ..I   Mun-liO,  1SSC,,  \\illi 

the  exception  of  iimm-  II.H.I  \H-HNI;  1878,  to  uuinary  x7,  1M1. 

M\p^nililuri'-<  (in-  tin-  Mii|ip..il  ,.|  (In-  Mihlar\  Vciiilciu  y  nnisl  l.i>  hinil.Ml  lo  tln> 
ninoiints  apprnpi  ialcil  in  I  lir  a.  IM  I'm-  I  In-  snp|mrl  ol  I  In-  \i'adi'in\  .  unless  a  i-onl  rarv 
inupiiMi-  on  III.-  p.  n  I  ul  Conurt-MM  «•!«•.  M  l\  ap]>rais  in  ilx  legislation.  (•'  Wg.Compf. 
I  N  'Jl«  ) 

Nn-cMsan  rxpciiMrH  at  tin-  niililai  \  pnsl  til  Wi-Ml  I'oinl,  nnl«'pi-iiili-nl  ..I  Us  n-lation 
In  I  lir  M  ilit.  n  \  \,  -a.li'in\  .  nut  proviilnl  l.n  in  .  \  |ii.  .  I.  i  MI  -  orl>\  in'crssarv  iiupli 
i  .il  i.  >n,  in  Hi.'  aft  M  m  a  Km;;  apprnpi  i:il  nm  <  l.u  I  ho  support  <il  I  In-  M  ililarv  \.'.ulrni\  , 
air  piop.Mlv  rli.u  ••.,  al.lr  In  I  l,r  appl  npii.i  I  lull  availalilr  lor  IlUr  rxprns.-sat  ol  hi  r 
iMil.laix  p.i.ls.  Cl  llii,|  ,216  » 

\  u  appropi  i.  .ti.  ui  l.u  imiliii".  n,  ir  .  l.ir  I  ho  Sujiri  in  I  .-li.li-li  I  .>C  I  hr  Military  Arad 
run  it  an  apprnpi  ial  nni  Inr  pin  posrs  nl'a  run  I  in-.rnl  rharailri;  that  is.  siirli  ;IH 
might  Of  might  DO!  liappon,  ami  Which  CongreMH  COUld  not  easily  lor.<srr.  anil  Ihrrr 
l.-lr  .  ...ll.l  II,  it  pi-ox  ji|<<  I,.,  .Irlillllrly.  (\\  \  hill  .,  'J  1C..  ) 

'<  Hut  nt'o  paragraph  IliCt,  posl,  Im  ..|  hrr  alln\\  anrrs  of  I  his  nlli,  rr. 

"Thr  annual  a.  t  .  .'I  apprnprial  ion,  sun  r  I  ha  I  ..I  l-'rliinary  IS,  1ST  I  (  If,  Slut  .  1  ,.  .  1  1  I) 
have  rniilainr.l  provisions  i'or  I  hr  roinprlisat  ion  ol  I  lit-  fhaprl  m  ".nil  I  at  I  hr  i  air  of 
t'.!00  prr  annum 


THE   MILITARY  LAWS   OP  THE   UKlTEl)  STATED. 

dollars  per  month;  six  shall  ouch  be  paid  twenty  dollars 
per  month;  and  the  remaining  twelve  shall  each  be  paid 
seventeen  dollars  per  month;  and  that  the  enlisted  musi- 
cians of  the  band  shall  have  (he  benefits  as  lo  pa\  arising 
from  re  enlistments  and  length  of  service  applicable  to 
other  enlist  od  men  of  (he  Army.  AVr.  .Y,  /7m/. 

•(JKNKItAL     AK.MV     SIORVK'M     AIKN,    <VH  A  ItTKIMYI  ASTKIt'S     DK 
I'AltTMKNT. 

1134.  That  the  enlisted   men  known  as  the  artillery  do-    C.MHMUI   Army 


tachmont  at  West  Point  shall  bo  mustered  out  of  the  serv  -  '"'' 


ice  as  artillery  men  and  immediately  re  enlisted  as  Army"*''1'' 
servicemen  in  the  <A>u  a  rterm  aster's  Department,  continu- 
ini;  to  perform  the  same  duties  and  to  have  the.  same  pay, 
allowances,  rights  and  privileges,  and  subject  to  I  he  rules, 
regulations  and  laws  in  the  same  manner  as  if  I  heir  service 
had  been  emit  mnous  in  the  artillery,  and  their  .said  service 
shall  bo  considered  and  declared  to  bo  continuous  in  the 
Army.  Art  of  ,lun<'  :.><>,  IWH)  (M  Mat.  /,-.,  Hi';). 

1135.  That  tho  detachments  of  enlisled  men  at  the  IMili   .((1.!:ilii;;1lllt      of 
lary  Academy,  hcrelofore  designated  as  the  (ieneral  A  rmy  .,;'',',"  ;,!,J'  lm>r>1  Vl 
Service,  Quartermaster's  Department,  and  the  cavalry  de 
tachmont,  shall   be   li\e<l   at    such    nnmboi's,  not  exceeding 
two  hundred  and  fifteen  enlisted  men  in  both  detachments, 
as  in  (he  opinion  of  the-  Secretary  of  War  tho  necessities  of 
the  public,  service  may  from    time  to  time  require;   but.  the 
number  of  enlisted  men  of  the  Army  shall  not  be  increased 
on  account,  of  this  proviso  or  the  two  preceding  paragraphs 
of  this  Act.1     Act  of,lnn<-  Id,  /.s'/y.i  (  -.'.s-  Mat.  L.,  6V.W). 


1136.  Tlie   non  commissioned    officer    in    c,har^e   of   me      i'»\  -r 
chauics  and  other  labor  ai  the  Military  Academy,  the  sol-  '  <nApr.V"iiHRfl.«. 
dier  ac.tin^  as  clerk   in   t.lu^  a(lju(a,n('s  office,  and   tho  four  '  s^.'iaiiliJlN. 
o.nlist<Ml    men    in    the    philosophical    and    chemical   depart 

incuts  and   lithographic  oflice,  shall   receive   fifty  dollars  a 
year  addil  ional  pay.' 

1137.  That  the.  nature  of  alcoholic,  drinks  and  narcotics,     Slmlv  "rHlt'(  'tw 

'  of      ill  v.  oho  1  1<! 

mid  special  instruction  as  to  their  etlocts  upon  the  human  (lli!lkM  »"'1  '»"*• 

COtlc.H  . 

system,  in  connection  with  the  several  divisions  of  the  sub    (  MH.V  20,  IKHO.V. 
ject  of  physiology  and  hygiene,  shall  be  included  in  the 

•Tlu>  act,  ..('  .hilv  '.'<•',  IH1M  (2H  Sli.l.  I,.,  I.r..r.),  r.uiilrm<il  authority  upon  tho  Smvlai  y 

•  •rWjir    I,,    MM  .-,-;,„•    in.  -  ..|,-,.|,:..||,    ul    tin;.,  |,  •hirhiiii-nl.   to  0110    liiimlnMl    iinil    liliy  ini-ii. 

•  net,  ..I    M;i.vli  •;,  is-.ir,  c.».i  Slal,  I...  IH),  |ix,<H  t  lie  Mln'.i-l  I.  ..I  th.    rjiv.-ilry  ili<t,ar'limriif. 

:  On.-  Hi-si  MIM-»I-:III|-.  liv.-.-H  r-r!iiit.s,  Tour  <-orporalM,  two  rurrirrN.  unrHiulilh 
r,  .iii.l  lift  y  l\\«>  |.i'i  \  : 
of  March  (>,  1H!»C,  ('J'.) 
l  1:1  1  1  ii  I  y   pay   to  Hm  m 
6y  SO  appropnated  ihall   !»«• 


. 
oin-  \M^oiirr,  .iii.l  lift  y   l\\«>  |.i'i  \  :i  I.-M. 

v'l'hr  act  of  March  (>,  1H!»C,  ('J'.)  St:il,  L.,  -1H),  coiitaiiiM  an  a.pi.ropi  i.il  u.n  fur  tin-  puy- 
incnl  of  c\l  1:1  1  1  ii  I  y  pay  to  Hm  mliTM  rn  listed  IIP  n  willi  I  I  in  pn>\  JMU  I  li:il  IIUIH-  <>f  I  In-. 
mOH6y  SO  appropnated  ihall  !»«•  paid  l<>  any  cnliHtcd  man  who  roroivrs  extra  «lut,y 
nay  UIldoroxiHlin^  lawn  or  Ariny  l.'i-"  nlal  iuns.  'I'lit*  iicln  of  .1  uno  1!(),  IH90  (20  Star. 
I,..'  1(17),  Man  I,  -.',  IK'.U  C'C,  Slal.  l'..,  Kl'O),  .Inl.y  14.  IWCJ  (''V  Slat,  I,.,  171),  March  I,  IWW 
(U7  St.at,.  l,.ir»1JO),.lulv  :•»;,  IK'.il  <::n  Slal..  I,.,'  l.r>.r)),  and  .lainiary  l«,  IHUf)  (W  Sl.at.  I-., 


i(J31),  i  »oiaiu  aimilur  FMtriotionB. 


396  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

branches  of  study  taught  in  the  common  or  public  schools, 
and  in  the  Military  and  Naval  Schools,  and  shall  be  studied 
and  taught  as  thoroughly  and  in  the  same  manner  as  other 
like  required  branches  are  in  said  schools,  by  the  use  of 
text-books  in  the  hands  of  pupils  where  other  branches  are 
thus  studied  in  said  schools,  and  by  all  pupils  in  all  said 
schools  throughout  the  Territories,  in  the  Military  and 
Naval  Academies  of  the  United  States,  and  in  the  District 
of  Columbia,  and  in  all  Indian  and  colored  schools  in  the 
Territories  of  the  United  States.  Act  of  May  20,  1886  (24 
Stat.  L.,  69}. 
Enforcement.  1138.  That  it  shall  be  the  duty  of  the  proper  officers  in 

Sec  2  May  20.  J 

1886,  v. 24, p  69  control  of  any  school  described  in  the  foregoing  section  to 
enforce  the  provisions  of  this  act;  and  any  such  officer, 
school  director,  committee,  superintendent,  or  teacher  who 
shall  refuse  or  neglect  to  comply  with  the  requirements  of 
this  act,  or  shall  neglect  or  fail  to  make  proper  provisions 
for  the  instruction  required  and  in  the  manner  specified  by 
the  first  section  of  this  act,  for  all  pupils  in  each  and  every 
school  under  his  jurisdiction,  shall  be  removed  from  office, 
and  the  vacancy  filled  as  in  other  cases.  Sec.  2,  act  of  May 
20,  1886  (24  Stat.  L.,  69). 

THE   CULLUM  BEQUEST. 

Preamble.  1139.  Whereas  George  W.  Cullum,  colonel  of  the  Corps 

of  Engineers  on  the  retired  list,  brevet  major-general 
United  States  Army,  a  resident  of  the  city  of  New  York, 
lately  deceased,  did,  by  his  last  will  and  testament,  give 
and  bequeath  to  the  United  States  the  sum  of  two  hun- 
dred and  fifty  thousand  dollars  upon  the  terms  and  condi- 
tions that  the  United  States  shall  build  and  maintain, 
in  accordance  with  certain  stipulations,  upon  the  public 
grounds  at  West  Point,  New  York,  a  fire-proof  memorial 
hall  for  certain  designated  purposes  hereinafter  specified: 
Therefore, 

Military  Acad-     Be  it  enacted  by  the  Senate  and  House  of  Representatives 
Acceptance  of  of  the  United  States  of  America  in  Congress  assembled,  That 
G.qw.scnii\im  for  the  said  bequest  be,  and  the  same  hereby  is,  accepted  by 
a11'     the  United  States  under  the  terms  and  conditions  thereto 
annexed  by  the  said  testator  in  his  said  last  will  and  testa- 
ment; the  said  sum  of  two  hundred  and  fifty  thousand 
dollars  to  be  paid  into  the  Treasury  of  the  United  States, 
subject  to  the  disposition  hereinafter  to  be  made  of  the 
same  and  for  the  faithful  execution  of  the  objects  and  pur- 
poses of  said  bequest  according  to  the  will  of  the  donor. 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES. 


397 


SEC.  2.  That  the  Superintendent  of  the  United  States  tef8oard  of  tru8- 
Military  Academy,  three  other  members  of  the  academic 
board,  and  Major-General  James  B.  Fry,  during  his  life- 
time, be,  and  they  are,  constituted  a  board,  by  the  name 
of  "The  Board  of  Trustees  of  the  Memorial  Hall  of  the 
United  States  Military  Academy,"  whose  duty  it  shall  be  Duties- 
to  erect  the  said  memorial  hall  according  to  the  provisions  ' 
of  the  will  of  the  testator,  and  on  completion  thereof  to 
transfer  the  same  to  the  United  States  for  perpetual  use 
as  a  memorial  hall,  to  be  devoted  to  the  objects  and  pur- 
poses as  denned  in  the  said  will.  And  the  members  of 
the  said  board  of  trustees,  to  be  selected  as  aforesaid, 
shall  be  appointed,  immediately  upon  the  passage  of  this 
act,  by  the  Secretary  of  War,  from  members  of  the  aca- 
demic board  of  the  said  academy  who  are  graduates  thereof. 
And  in  the  event  of  any  vacancy  occurring  in  the  said  vacancies, 
board  of  trustees,  either  by  the  death  or  inability  to  serve 
of  Major-General  James  B.  Fry,  or  by  the  death  or  vaca- 
tion of  office  of  any  member  thereof  who  was  appointed 
by  selection  from  the  members  of  the  said  academic  board, 
the  Secretary  of  War  shall  in  each  case,  and  from  time  to 
time  as  often  as  vacancies  occur,  fill  such  vacancy  by  the 
appointment  of  a  member  of  the  said  academic  board,  who 
shall  be  a  graduate  of  the  said  Military  Academy,  in  the 
same  manner  as  provided  for  the  original  appointments. 

SEC.  3.  That  when  the  said  sum  of  two  hundred  and  fifty 
thousand  dollars  shall  have  been  paid  into  the  Treasury 
of  the  United  States  the  whole  sum  shall  be,  and  hereby  is, 
appropriated  for  the  erection  of  a  suitable  structure  for 
the  purposes  of  a  memorial  hall  at  West  Point,  New  York, 
upon  such  site  at  West  Point,  New  York,  as  the  board  of 
trustees  herein  created  shall  recommend  and  the  Secretary 
of  War  approve. 

SEC.  4.  That  the  said  board  of  trustees  shall,  as  soon  as  m.pjans to be 8Ub- 
practicable  after  the  funds  appropriated  for  building  pur-  of  trustees, 
poses  in  the  preceding  section  shall  have  become  available, 
determine,  by  a  majority  of  the  whole  number  of  its  mem- 
bers, upon  a  plan  and  specifications  for  a  building  to  be 
erected  corresponding  to  and  in  accordance  with  the  terms 
and  conditions  of  the  aforesaid  bequest,  and  submit  the 
same  to  the  Secretary  of  War  for  his  approval,  who  on    Approval  by 

Secretary  of  War. 

behalf  of  the  United  States  shall  then  cause  a  contract  to 
be  let,  in  the  same  manner  as  other  contracts  to  which  the 
United  States  is  a  party,  for  the  erection  of  said  building, 
under  the  direction  of  the  said  board  of  trustees. 


Erection 
building. 


of 


398 


THE   MILITARY   LAWS    OF   THE   UNITED    STATES. 


Use  of  funds.  gEc.  5.  That  the  funds  appropriated  in  this  act  shall  be 
drawn  from  the  Treasury  as  required  by  section  thirty-six 
hundred  and  seventy-  three,  Eevised  Statutes  of  the  United 
States,  in  the  case  of  moneys  appropriated  for  the  use  of 
the  War  Department.  And  the  said  board  of  trustees 
shall  submit  to  the  Secretary  of  War  estimates  for  Ms 
approval,  which  shall  form  the  basis  of  his  requisition- 
The  funds  so  drawn  shall  be  disbursed,  under  the  direction) 
of  the  Secretary  of  War,  by  the  disbursing  officer  of  the; 
United  States  Military  Academy,  upon  vouchers  certi- 
fied to  by  the  president  and  secretary  of  the  said  board 
of  trustees  for  and  in  behalf  of  said  board,  and  shall  be 
accounted  for  by  the  said  disbursing  officer  in  the  same 
manner  and  under  the  same  conditions  as  other  public 

Proviso.          funds  of  the  United  States:  Provided.  That  the  authority 

Approval  of  • 

secretary  of  war  of  the  Secretary  of  War  for  any  expenditure  under  the 

sees,  1-5,  July  provisions  of  this  act  shall  be  conclusive  evidence  of  the 

23^  1892,  v.  27,  p.  legalitv  thereo£     Sections  1-5,  act  of  July  23,  1892  (27  8fat. 

L.,  262). 

1  1140.  That  the  memorial  hall  to  be  erected  under  the 
provisions  of  this  act  shall  be  a  receptacle  of  statues,, 
busts,  mural  tablets,  and  portraits  of  distinguished  andl 
deceased  officers  and  graduates  of  the  Military  Academy, 
of  paintings  of  battle  scenes,  trophies  of  war,  and  such 
other  objects  as  may  tend  to  give  elevation  to  the  military 
profession;  and  to  prevent  the  introduction  of  unworthy 
subjects  into  this  hall  the  selection  of  each  shall  be  made 
by  not  less  than  two-thirds  of  the  members  of  the  entire 
academic  board  of  the  United  States  Military  Academy, 
the  vote  being  taken  by  ayes  and  nays  and  to  be  so 
recorded.  Sec.  6,  ibid. 


Purpose  of  thi 
memorial  hall. 
Sec.  6,  ibid. 


THE   SERVICE   SCHOOLS. 


Par. 

1141.  The  Engineer  Depot  at  Wil- 

lets  Point,  N.  Y. 

1142.  The  Artillery  School  at  For- 

tress Monroe,  Va. 


Par. 

1143.  The  Infantry   and  Cavalry 

School   at    Fort    Leaveii- 
worth,  Kans. 

1144.  The  Cavalry  and  Light  Ar- 

tillery   School     at     Fort 
Riley,  Kans. 


THE  ENGINEER  DEPOT  AT  WILLETS   POINT,    N.   Y. 

i'he  Engineer     1141.  Engineer  depot  at  Willet's  Point,  New  York :  Inci- 

Depot  at  Willets  , 

Pomt,  N.  Y.       dental  expenses  of  the  depot:  For  purchase  of  materials 
'  for  the  instruction  of  engineer  troops  at  Willets7  Point  in 
their  special  duties  of  sappers,  miners,  for  land  and  subma- 
rine mines,  and  pontoneers,  torpedo  drill  and  signaling,  one 


THE   MILITARY   LAWS    OP   THE    UNITED    STATES.  399 

thousand  five  hundred  dollars;  library  of  the  Engineer 
School  of  Application:  purchase  and  binding  of  profes- 
sional works  of  recent  date  treating  of  military  and  civil 
engineering,  five  hundred  dollars  $  in  all,  fifteen  thousand 
five  hundred  dollars.1  Act  of  September  22,  1888  (25  Stat. 
£.,  487}. 

THE    ARTILLERY   SCHOOL  AT   FORTRESS   MONROE,    VA. 

1142.  To  provide  for  means  of  instruction,  such  as  text-    The  Artillery 

.  School    at    For- 

books,   instruments,   drawing   materials,   and   stationery  tress  Monroe,  va. 

.  .      June  11.   1896, 

required  m  the  courses  of  artillery,  engineering,  law,  and  v.  29,  P.  444 
the   science  and    art  of  war,   and  for    other  necessary 
expenses  of  the    school,   five  thousand   dollars.2    Act  of 
June  11,  1896  (29  Stat.  L.,  444). 

THE  INFANTRY  AND  CAVALRY  SCHOOL  AT  FORT  LEAVENWORTH,  KANS. 

1143.  For  text-books,  books   of  reference,  instruments 
and  materials  for  use  in  theoretical  and  practical  Uistrpo- 

tion,  one  thousand  five  hundred  dollars.3    Act  of  June  11.  , 

7     June  II,   1896, 

1896  (29  Stat.  £.,  444).  v.29,P.444. 

THE  CAVALRY   AND   LIGHT  ARTILLERY   SCHOOL  AT  FORT   RILEY,  KANS. 

1144.  That  the  Secretary  of  War  be,  and  he  is  hereby, 
authorized  and  directed  to  establish  upon  the  military  res-  Auction 
ervatioii  at  Fort  Riley  a  permanent  school  of  instruction  listed  at   Fort 

^        A  Kane. 


t  , 

for  drill  and  practice  for  the  cavalry  and  light  artillery    Jan.  29, 
service  of  the  Army  of  the  United  States,  and  which  shall  V' 
be  the  depot  to  which  all  recruits  for  such  service  shall  be 

'The  engineer  depot  was  established  by  executive  order,  but  has  been  recognized 
in  the  several  acts  of  appropriation.  See  acts  of  March  3,  1871  (16  Stat.  L.,  523)  ; 
March  3,  1873  (17  Stat.  L.,  546)  ;  June  16,  1874  (18  Stat.  L.,  74)  ;  July  24,  1876  (19  Stat. 
L.,  100);  March  3,  1878  (20  Stat.  L.,  32);  March  3,  1879  (ibid.,  467),  May  4,  1880  (21 
Stat.  L.,  13)  ;  February  24,  1881  (ibid.,  349)  ;  June  30,  1882  (22  Stat.  L.,  121)  ;  March  3, 
1883  (ibid.,  459);  July  5,  1884  (23  Stat.  L.,  112);  March  3,  1885  (ibid.,  434);  June  30, 
1886  (24  Stat.  L.,  98)  ,  February  9,  1887  (ibid.,  400)  ;  September  22,  1888  (25  Stat.  L.,  487)  ; 
March  2,  1889  (ibid.,  832)  ;  June  13,  1890  (26  Stat.  L.,  155)  ;  February  24,  1891  (ibid., 
778);  July  16,  1892  (27  Stat.  L.,  181);  February  29,  1893  (ibid.,  485);  August  6,  1894 
(28  Stat.  L.,  241)  ;  February  12,  1895  (ibid.,  662),  and  March  16,  1896  (29  Stat.  L.,  67). 

irL'he  Artillery  School  was  established  at  Fortress  Monroe,  Va.,  in  pursuance  of 
General  Orders,  No.  18,  Adjutant-General's  Office,  of  April  5,  1824.  It  ceased  toexist, 
in  1835,  by  reason  of  the  transfer  of  the  troops  composing  the  school  to  other  duties. 
It  was  reestablished  by  General  Orders,  No.  9,  Adjutant-General's  Office,  of  October 
30,  1856.  A  code  of  regulations  and  plan  of  instruction  was  approved  by  the  Secre- 
tary of  War  arid  published  to  the  Army  in  General  Orders,  No.  5,  Adjutant-General's 
Office,  of  May  18,  1858.  The  school  was  again  discontinued  at  the  outbreak  of  the 
war  of  the  rebellion  in  1861.  It  was  again  organized  on  its  present  foundation  by 
General  Orders,  No.  99,  Adjutant-General's  Office,  of  November  13,  1867.  Although 
not  created  by  statute,  its  existence  has  been  recognized  and  the  courses  of  study 
pursued  have  been  sanctioned  by  Congress  in  several  acts  of  appropriation.  See 
acts  of  June  20,  1878  (20  Stat.  L./223)  :  March  3,  1879  (ibid..  389)  ;  March  3,  1881  (21 
Stat.  L.,  445)  ;  August  7,  1882  (22  Stat.  L.,  320)  ;  March  3,  1883  (ibid.,  618)  ;  July  7,  1884 
(23  Stat.  L.,  222)  :  March  3.  1885  (ibid.,  510)  ;  August  4,  1886  (24  Stat.  L.,  251)  ;  October 
2,  1888  (25  Stat.  L.,  540);  March  2,  1889  (ibid.,  971);  August  30,  1890  (26  Stat.  L,,  402)  ; 
March  3,  1»91  (ibid.,  979)  ;  August  5,  1892  (27  Stat.  L.,  379)  ;  March  3,  1893  (ibjd.,  601} 
August  18,  1894(28  Stat.  L.,  406);  Mar.  2,  1895  (ibid.,  951),  and  June  11,  1896  (29  Stat, 
L.,  444). 

:The  Infantry  and  Cavalry  School  was  established  at  Fort  Leavenworth,  Kans.,  in 
pursuance  of  General  Orders,  No.  42,  Adjutant-General's  Office,  of  May  7,  1881. 
Although  not  created  by  statute,  its  existence  has  been  recognized  by  Congress  in, 
several  acts  of  appropriation.  See  acts  of  March  2,  1889  (25  Stat.  L.,  966);  August 
30,  1890  (26  Stat.  L.,  462)  ;  March  3,  1891  (ibid.,  979)  ;  August  5,  1892  (27  Stat.  L.,  379): 
March  3,  1893  (ibid.,  601)  ;  August  18,  1894  (28  Stat,  L.,  400)  ;  March  2,  1895  (ibid.,  951), 
and  June  11,  1896  (29  Stat.  L.,  444), 


400      THE  MILITARY  LAWS  OF  THE  UNTIED  STATES. 

sent;  and  for  the  purpose  01  construction  of  such  quarters, 
barracks,  and  stables  as  may  be  required  to  carry  into 
effect  the  purposes  of  this  act  the  sum  of  two  hundred 
thousand  dollars,  or  so  much  thereof  as  may  be  necessary, 
is  hereby  appropriated  out  of  any  money  in  the  Treasury 
not  otherwise  appropriated.1  Act  of  January  29,  1887  (24 
Stat.  L.,  372}. 


1  The  Cavalry  and  Light  Artillery  School  was  established  in  pursuance  of  the  act 
of  January  2D,  1887,  by  General  Orders,  No  17,  Adjutant-General's  Office,  oi'March  14, 
1882.  See  also  in  connection  with  this  school  the  acts  of  October  2.  1888  (25  Stat.  L., 
534),  and  March  2,  1889  (ibid.,  966). 


CHAPTER    XXXI. 


CONTBACTS  AND  PUECHASES. 


GENERAL   PROVISIONS. 


Par. 

1145.  Contracts  for  military  serv- 

ice to  be  made  under  direc- 
tion of  Secretary  of  War. 

1146.  Unauthorized  contracts  pro- 

hibited. 

1147.  No  contract  to  exceed  ap- 

propriation. 

1148.  Purchases  of  land. 

1149.  Sites  for  buildings. 


Par. 

1150.  Acceptance     of     voluntary 

service    prohibited ;     ex- 
ceptions. 

1151.  Contracts    and    purchases, 

how  made;    advertising; 
public  exigencies. 

1152.  Supplies  for  Executive  De- 

partments. 

1153.  The  same. 


1145.  All  purchases  and  contracts  for  supplies  or  serv-    Contracts  for 

_  ,      .,  ,  ,      ,  the  military  serv- 

ices for  the  military  and  naval  service  shall  be  made  by  or  ice  to  be  made 

under  the  direction  of  the  chief  officers  of  the  Departments  oT secretary  'of 
of  War  and  of  the  Navy,  respectively.1     And  all  agents  or  VNjuiyi6,i798,c. 

85,  s.  3,v.l,p.  610; 

~~  Feb.  27,  1877,  c. 

•Under  this  statute  the  Secretary  of  "War  is  the  source  of  all  authority  to  make  09,  v.  19,  p.  249. 
contracts  or  purchases  in  all  branches  of  the  military  establishment.     "Whether  he     gec.  3714,  II.  S. 
makes  the  contracts  himself,  or  confers  the  authority  upon  others,  it  is  his  duty  to 
see  that  they  are  properly  and  faithfully  executed  ;  and  if  he  becomes  satisfied  that 
contracts  which  he  has  made  himself  are  being  fraudulently  executed,  or  those 
made  by  others  were  made  in  disregard  of  the  rights  of  the  Government,  or  with 
the  intent  to  defraud  it,  or  are  being  unfaithfully  executed,  it  is  his  duty  to  inter- 
pose, arrest  the  execution,  and  adopt  effectual  measures  to  protect  the  Government 
against  the  dishonesty  of  subordinates."    U.  S.  v.  Adams,  7  Wall.,  463,  477;  Parish 
v.  U.  S.,  8  Wall.,  489. 

The  head  of  an  Executive  Department  may,  when  not  prejudicial  to  the  interests 
of  the  Government,  or  for  its  benefit,  alter  or  modify  the  terms  of  a  contract  made 
under  his  direction,  but  his  subordinates  may  not  take  such  action  without  express 
authority  from  him.  (2  Compt.  Dec.,  182.) 

The  laws  governing  the  purchase  of  supplies  for  the  Army  are  equally  applicable 
whether  the  purchases  are  made  from  funds  received  from  the  sale  of  stores  or  from 
the  regular  appropriations  available  therefor.  (3  Dig.  Compt.  Dec.,  287.) 

It  is  only  an  express  contract  which  (in  the  absence  of  special  authority  from 
Congress)  can  legally  be  entered  into  by  the  Secretary  of  War,  or  a  military  officer,  or 
can  be  recognized  and  acted  upon  as  binding  upon  the  United  States.  Claims  against 
the  United  States  arising  upon  alleged  implied  contract  can  not  be  entertained,  but 
the  claimants  must  be  referred  to  the  Court  of  Claims  or  Congress.  Further,  the 
contract,  to  be  legally  made  or  recognized  as  legal,  must  be  in  writing  (a)  (except 
only— according  to  the  ruling  in  Cobb's  Case  (b)  when  entered  into  without  previous 
advertisement  by  reason  of  the  existence  of  a  " public  exigency ;"  see  infra).  So, 
in  a  case  where  the  only  evidence  of  an  alleged  contract  of  lease  consisted  of  vouch- 
ers, setting  forth  accounts  for  rent  claimed,  approved  by  an  assistant  quartermaster, 
held,  that  there  was  no  sufficient  evidence  of  an  express  or  written  contract  upon 
orized  by  the  Secretary  of  War.  (c)  (Dig.  Opin.  J.  A. 

The  Secretary  of  War  has  authority  to  extend  the  time  for  the  execution  of  a  con- 
tract made  on  behalf  of  his  Department  when  the  interests  of  the  Government  are 
not  thereby  prejudiced,  and  particularly  when  its  noncompletion  within  the  time 
limited  is  not  due  to  the  negligence  of  the  contractor.  (2  Compt.  Dec.,  242;  Solomon  v. 
U.  S.,  19  Wall.,  17;  U.  S.  v.  Corliss  Steam  Engine  Co.,  91  U.  S.,  321 ;  18  Opin.  Att.  Gen., 
101 ;  2  Compt.  Dec.,  635.) 

oSee  Henderson  v.  U.  S..4C.  Cls.  R..  75;  14  Opin.  Att.  Gen.,  229:  Clark  v.  U.  S.,95 
U.  S.,  539. 

feCobb  v.  U.  S.,  7  C.  Cls.  R.,  470,  and  9  ibid.,  291.    And  see  Thompson  v.  U.  S., 
ibid,  198. 
cSee  14  Opin.  Att.  Gen.,  230. 

40X 
1919 26 


which  payment  could  be  auth 
Gen.,  275,  par.  1.) 


402  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

contractors  for  supplies  or  service  as  aforesaid  shall  render 
their  accounts  for  settlement  to  the  accountant  of  the 
proper  department  for  which  such  supplies  or  services  are 
required,  subject,  nevertheless,  to  the  inspection  and  revi- 
sion of  the  officers  of  the  Treasury  in  the  manner  before 
prescribed. 
unauthorized  1146.  No  contract  or  purchase  on  behalf  of  the  United 

contracts  prohib- 

ited. ^     States  shall  be  made,  unless  the  same  is  authorized  by  law 

84,  s?rio,'v.  12,'pior  is  under  an  appropriation  adequate  to  its  fulfillment, 

22sec.  3732,  R.  s.  except  in  the  War  and  Navy  Departments,  for  clothing, 

subsistence,  forage,  fuel,  quarters,  or  transportation,  which, 

however,  shall  not  exceed  the  necessities  of  the  current 

year.1 

NO  contract  to     H47.  No  contract  shall  be  entered  into  for  the  erection, 

exceed  appropri- 

ation. repair,  or  furnishing  of  any  public  building,  or  for  any 

233,  s.  3,  v.  is,'  p.  public  improvement  which  shall  bind  the  Government  to 

sec.  3733,  R.S.  pay  a  larger  sum  of  money  than  the  amount  in  the  Treas- 

ury appropriated  for  the  specific  purpose.2 
land  rchases  °f     11^8.  No  land  shall  be  purchased  on  account  of  the  United 

Ma  r  i  1820  c  States,  except  under  a  law  authorizing  such  purchase.3 

52,  s.  7,  v'.  3,p.  568. 


^sites  for  build-     n£Q   ]sjo  money  shall  be  paid  nor  contracts  made  for 
i8Ma37i  '  1875)  v'  Pavment  f°r  any  site  for  a  public  building  in  excess  of  the 

amount  specifically  appropriated  therefor.4    Act  of  March  3, 

1875  (18  Stat.  L.,  371). 

1  The  restrictions  of  section  3732,  Revised  Statutes,  are  in  the  alternative,  pro- 
hibiting a  contract  or  purchase  on  the  part  of  the  United  States  unless  "authorized 
by  law     or  unless  such  contract  or  purchase  is  made  "  under  an  appropriation  ade- 
quate to  its  fulfillment."    Contracts  to  be  valid  must  be  shown  to  come  under  one  or 
the  other  of  these  provisions.     Shipman  -v  .  U.  S.,  18  C.  Cls.  R.,  138. 

When  the  authority  to  enter  into  a  contract  for  a  particular  work  in  behalf  of  the 
United  States  depends  wholly  upon  an  appropriation  of  money  made  for  that  pur- 
pose, no  officer  of  the  Government  has  power  to  create  a  liability  therefor  beyond 
the  amount  of  the  appropriation,  and  a  contractor  can  not  recover  more  than  the 
money  appropriated,  whatever  may  be  the  extent  of  his  work.  When  an  alleged 
liability  rests  wholly  upon  the  authority  of  an  appropriation,  they  must  stand  or 
fall  together  ;  so  that  when  the  latter  is  exhausted  the  former  is  at  .an  end,  to  be 
revived,  if  at  all,  only  by  subsequent  legislation  by  Congress.  Shipman  v.  IT.  S.,  18 
C.  Cls.  R.,  138,  147;  McCullom  v.  U  S.,  17  ibid.,  92,  103;  Trenton  Co.  v.  U.S..  12  ibid., 
147,  157. 

If  an  officer  is  clothed  with  authority  to  dp  a  piece  of  work  without  limitation  as 
to  cost,  the  contracts  made  by  him  therefor  are  binding  upon  the  Government, 
whether  money  is  appropriated  for  the  purpose  or  not.  Shipman  v.  U.  S.,  18  ibid., 
138;  Collins  v.  U.S.,  15  ibid.  ,22,  35;  13  Op.  Att.G^n.,315;  15  ibid.,  236. 

Acknowledgments  and  promises  made  by  executive  officers  of  the  Government 
do  not  bind  the  United  States  when  they  are  not  made  under  express  or  implied 
authority  of  Congress.  Leonard  et  al.  v.  U.  S.,  18  C.  Cls.  R.,  382. 

2  Authority  to  contract  for  the  completion  of  an  entire  structure,  the  plan  of  which 
has  been  determined  on,  can  not  be  inferred  from  the  mere  fact  that  an  appropriation 
of  a  certain  sum,  to  be  expended  on  the  structure,  has  been  made.    Hence  a  contract, 
though  it  be  good  to  the  extent  of  such  appropriation,  could  not  affix  itself  to  future 
appropriations  and  control  their  expenditure.    A  contract  of  this  character  would 
be  in  violation  of  the  spirit  of  section  3,  act  ot  July  25,  1868  (sec.  3733,  R.  S.),  if  not  of 
its  express  terms      15  Opin.  Att.  Gen.,  236. 

Under  section  5  of  the  act  of  June  20,  1874  (18  Stat.  L.,  Ill),  all  appropriations  for 
*  public  buildings  "  are  available  until  otherwise  ordered  by  Congress.  3  Compt. 
Dec.,  29.  A  sub-appropriation  for  a  public  building  must,  under  the  act  of  June  20, 
1874  (18  Stat.  L.,  110,  111),  remain  available  until  its  object  has  been  accomplished  or 
until  it  has  been  exhausted,  unless  otherwise  ordered  by  Congress.  Ibid. 

3  The  act  of  Congress  does  not  prohibit  the  acquisition  by  the  United  States  of  the 
legal  title  to  land,  without  express  legislative  authority,  when  it  is  taken  byway 
of  security  for  debt.     Neilson  v.  Lagow,  12  How.,  98. 

4  See,  also,  for  additional  restrictions  the  act  of  March  3,  1875  (18  Stat.  L.,  371). 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  403 

1150.  Hereafter  no  Department  or  officer  of  the  United    Acceptance  of 

voluntary    serv- 

States  shall  accept  voluntary  service  for  the  Government  ice    prohibited; 

exceptions. 

or  employ  personal  service  in  excess  of  that  authorized  by^Maj  i,  i884,v. 
law,  except  in  cases  .of  sudden  emergency  involving  the 
loss  of  human  life  or  the  destruction  of  property.    Act  of 
May  1,  1884  (23  Stat.  L.,  17). 

1151.  All  purchases  and  contracts  for  supplies1  or  serv-    contracts  and 


ices,  in  any  of  the  Departments  of  the  Government,  except  made  ;a8aderti 
for  personal  services,  shall  be  made  by  advertising2  a  suf-  gelcie^u 
ficient  time  previously  for  proposals  respecting  the  same,  84Msario2'v18f2'  p.' 
when  the  public  exigencies  do  not  require  the  immediate  Supplies  for  EI- 
delivery  of  the  articles,  or  performance  of  the  service.  StJ6  Depart' 
When  immediate  delivery  or  performance  is  required  by    sec.8709,n.s. 
the  public  exigency,3  the  articles  or  service  required  may  be 
procured  by  open  purchase  or  contract,  at  the  places  and 
in  the  manner  in  which  such  articles  are  usually  bought 
and  sold,  or  such  services  engaged,  between  individuals.3 

1152.  And  the  advertisement  for  such  proposals  shall  be  Advertisements 

*       A  for   all   the   De- 

made  by  all  the  Executive  Departments,  including;  the  De-  payments  to  be 

on  the  same  day. 

partment  of  Labor,  the  United  States  Fish  Commission,  the    Sec.  i,  Jan.  27, 

1894,  v.  28,  p.  33. 

Interstate  Commerce  Commission,  the  Smithsonian  Insti-    K.S.  sec.  3700, 
tutioii,  the  Government  Printing  Office,  the  government  of 
the  District  of  Columbia,  and  the  superintendent  of  the 
State,  War,  and  Navy  building,  except  for  paper  and  ma- 
terials for  use  of  the  Government  Printing  Office,  and 

*The  word  "supplies,"  as  used  in  section  3709  of  the  Revised  Statutes,  evidently 
has  reference  to  those  things  which  the  well-known  needs  of  the  public  service  will 
from  time  to  time  require  in  its  different  branches  for  its  successful  and  efficient 
administration,  and  the  statute  was  intended  to  afford  the  Government  the  pecu- 
niary benefits,  as  well  as  the  protection  against  fraud  and  favoritism,  which  open 
and  honest  competition  is  always  likely  to  secure.  It  could  not  have  been  in  the 
mind  of  the  lawmaking  power  to  require  that  purchases  could  only  be  made  after 
advertisement  of  small  articles  which  may  occasionally  be  needed,  and  where  in 
many  cases  the  cost  of  advertising  itself  would  exceed  the  value  of  the  article  pur- 
chased It  can  not  bo  said  that  such  cases  are  governed  by  the  emergency  provision 
in  the  statute,  for  there  may  be,  and  are,  many  instances  where  the  officer  could  not 
truthfully  certify  that  immediate  delivery  was  necessary.  (3  Dig.  Compt.  Dec.,  288.) 

2The  actot  March  2,  1861  (sec.  3709,  R.  S.),  while  requiring  such  advertisement,  as 
the  general  rule  invests  the  officer  charged  with  the  duty  of  procuring  supplies  or 
services  with  a  discretion  to  dispense  with  advertising,  it  the  exigencies  of  the  pub- 
lic service  require  immediate  delivery  or  performance.  It  is  too  well  settled  to 
admit  of  dispute  at  this  day  that,  where  there  is  a  discretion  of  this  kind  conferred 
on  an  officer  or  board  of  officers,  and  a  contract  is  made  in  which  they  have  exercised 
that  discretion,  the  validity  of  the  contract  can  not  be  made  to  depend  on  the  degree 
of  wisdom  or  skill  which  may  have  accompanied  its  exercise.  (U.  S.  v.  Speed,  8 
Wall,  77,  83;  Childs  v.  0.  S  ,  4  C.  Cls.  R.,  176;  Mason  u.  U.  S.,4  C.  Cls.  R.,495;  Went- 
worth  v.  U.  S.,  5  C  Cls.  R.,  302.  )  See  note  3. 

3Sectiou  3709,  Revised  Statutes,  provides,  generally,  that  the  making  of  public  con- 
tracts for  supplies,  etc.,  shall  be  preceded  by  an  advertising  for  proposals  "when  the 
public  exigencies  do  not  require  the  immediate  delivery  of  the  articles  or  perform- 
ance of  the  service."  Exigencies  growing  out  of  a  state  of  war,  or  hostilities  with. 
Indians,  were  probably  mainly  had  in  view,  and  it  is  exigencies  of  this  class  which 
have  been  considered  in  the  adjudged  cases  in  the  Supreme  Court  and  Court  of 
Claims,  (a)  It  is  clear,  however,  that  other  exigencies  may  exist  requiring  that  con- 
tracts or  purchases  be  made  at  once  or  without  the  delay  incident  to  advertising  for 
proposals.  Thus  a  loss  of  stores,  structures,  etc.,  on  hand,  caused  by  an  actus  Dei 

a  See  U.  S.  v.  Speed,  8  Wallace,  83  ;  Reeside  v.  U.  S.,  2  C.  Cls.  R.,  1  ;  Mowry  v.  U.  S., 
ibid.,  68  ;  Stevens  v.  U.  S.,  ibid.,  95  ;  Floyd  v.  U.  S.,  ibid.,  429  ;  Crowell  v.  U.  S.,  ibid., 
501  ;  Baker  v.  U.  S.,  3  ibid.,  343;  Henderson  v.  U.  S.,  4  ibid.,  75;  Childs  v.  U.  S.,  ibid., 
176;  Wentworth  v.  U.  S.,  5  ibid.,  302;  Wilcox  v.  U.  S.,  ibid.,  386;  Cobb  v.  U.  S.,  7 
ibid.,  471,  and  9  ibid.,  291;  Thompson  v.  U.  S.,  ibid.,  187;  McKee  v.  U.  S.,  12  ibid.,  505. 


404  THE    MILITARY   LAWS    OF    THE   UNITED    STATES. 

materials  used  in  the  work  of  the  Bureau  of  Engraving  and 
Printing,  which  shall  continue  to  be  advertised  for  and  pur- 
Time  for  open-  chased  as  now  provided  by  law,  on  the  same  days  and  shall 
8ame.id8tobeth6each  designate  two  o'clock  post  meridian  of  such  days  for 
the  opening  of  all  such  proposals  in  each  Department  and 
other  Government  establishment  in  the  city  of  Washington ; 
and  the  Secretary  of  the  Treasury  shall  designate  the  day 
or  days  in  each  year  for  the  opening  of  such  proposals  and 
give  due  notice  thereof  to  the  other  Departments  and  Gov- 
ernment establishments.  Such  proposals  shall  be  opened 
in  the  usual  way  and  schedules  thereof  duly  prepared  and, 
together  with  the  statement  of  the  proposed  action  of  each 
Department  and  Government  establishment  thereon,  shall 

or  vis  major,  as  fire,  storm,  freshet,  or  a  sudden  riot  or  violent  disorder;  or  a  loss  of 
supplies  occasioned  by  the  neglect  of  military  subordinates  in  charge ;  or  a  failure 
of  a  contractor  to  fulfill  a  contract  for  supplies,  transportation,  or  other  service, 
might  properly  be  regarded  as  constituting  an  ''exigency"  under  the  statute,  if  of 
such  magnitude  or  injurious  consequence  to  the  Army  as  to  necessitate  an  immediate 
making  good  of  the  deficiency,  (o)  The  general  rule,  however,  of  the  statute  in 
requiring  a  notice  and  invitation  to  the  public  as  a  preliminary  to  the  awarding  of  a 
contract,  is  founded  upon  a  sound  and  well-considered  public  policy,  and  exceptions 
thereto,  especially  in  time  of  peace,  should  be  recognized  as  admissible  only  where, 
if  the  rule  were  strictly  complied  with,  the  public  interests  would  manifestly  be  most 
seriously  prejudiced.  (6)  (Dig.  Opin.  J.  A.  G.,  279,  par.  9.) 

An  exigency  can  not  be  created  by  the  simple  certificate  of  a  public  officer  that  it 
exists.  An  exigency  involves  a  state  of  pressing  necessity  so  great  that  the  public 
interests  would  be  prejudiced  if  the  contemplated  purchase  was  not  made.  A  cer- 
tificate made  after  the  purchase  of  the  articles  is  of  no  effect.  (3  Dig.  Compt.  Dec., 
286.)  The  term  "public  exigency"  refers  to  an  exceptional  and  urgent  necessity 
requiring  the  immediate  performance  of  the  work  or  service.  (Ibid.,  328.) 

Proof  of  the  existence  of  an  exigency  must  be  presented  in  order  to  authorize  the 
accounting  officers  to  pass  a  voucher  for  an  exigency  purchase  under  section  3709  of 
the  Revised  Statutes.  Such  proof  must  accompany  the  voucher  in  the  form  of  a 
certificate  by  the  officer  who  made  the  purchase  that  a  public  exigency  required  the 
immediate  delivery  of  the  articles  purchased,  and  that  they  were,  therefore,  pur- 
chased in  open  market.  In  other  words,  there  must  be  proof  that  the  proper  officer 
has  actually  determined  that  an  exigency  existed.  The  certificate  may  be  made  in 
the  following  form:  "The  exigencies  of  the  public  service  required  the  immediate 
delivery  of  the  articles  specified  in  the  voucher,  and  they  were,  therefore,  obtained 
by  purchase  in  open  market,  without  advertisement,  and  at  the  lowest  market 
rates."  (Ibid.)' 

Except  in  the  rare  case  of  an  existing  public  exigency  a  contract  for  supplies  in 
the  War  Department  or  military  branch  of  the  service  is  to  be  preceded  by  au  adver- 
tisement for  proposals  as  directed  in  section  3709,  Kevised  Statutes.  This  advertise- 
ment is  not  a  mere  facility  for  the  convenience  of  an  executive  department,  which 
may  be  waived  at  discretion,  but  an  essential  proceeding  prescribed  by  the  statute  as 
a  condition  to  the  exercise  of  the  authority  to  enter  into  a  contract  for  the  United 
States.  Thus  enjoined,  no  omission  or  evasion  of  this  prerequisite,  however  con- 

a  See  G.  O.  10  of  1879.  sees.  22-25,  pp.  14-15;  do.  72,  ibid.,  p.  52;  do.  40  of  1880,  p. 
58;  also  McKee  v.  U.  S.',  12  C.  Cls.  R.,  529-530. 

b  As  to  the  authority  who  is  to  decide  whether  there  exists  such  an  exigency  as 
is  contemplated  by  the  statute,  the  Supreme  Court,  in  United  States  v.  Speed  (8  Wall 
ace,  83),  has  held  that  it  is  "the  officer  charged  with  the  duty  of  procuring  suppliea- 
or  services  who  is  invested  with  this  discretion."  This  description  is  rather  general, 
Doris  the  term  "the  purchasing  officer,"  by  which  the  Court  of  Claims  explains  it, 
in  Thompson  v.  U.  S.,  9  C.  Cls.  R.,  196,  a  much  more  precise  definition.  It  is  clear, 
however,  that  a  subordinate  officer  charged  with  the  duty  of  being  the  immediate 
representative  of  the  United  States  in  a  contract  or  purchase  should  not,  in  general, 
Tenture  to  dispense  with  advertising,  on  the  theory  of  the  existence  of  a  public 
exigency,  in  the  absence  of  instructions  or  orders  from  a  proper  superior.  Xor,  on 
the  other  hand,  will  a  superior  officer,  in  entering  into  a  contract  for  his  command 
or  branch  of  the  service,  properly  assume  that  an  "exigency"  exists  authorizing 
him  to  dispense  with  the  statutory  forms,  when  the  period  is  time  of  peace  and  no 
imperative  necessity  exists  for  the  immediate  delivery  of  the  supplies  or  perform- 
ance of  the  service  proposed  to  be  contracted  for.  It  is  to  be  noted  that  the  cases 
both  of  Speed  and  Thompson  related  to  contracts  entered  into  during  the  late  war. 
In  the  instructive  opinions  of  the  Attorney -General  on  the  "Fifteen  per  cent  con- 
tracts "  of  April  27  and  May  3, 1877  (15  Opin.,  235,  253),  it  is  held  that  the  "exigency" 
contemplated  by  the  statute  can  be  one  of  time  only,  and  that  it  can  be  regarded  as 
existing  only  where  an  immediate  delivery  or  Derformance  ia  required,  by  a  public 
necessity.  (Dig.  J.  A.  Gen.,  p.  280,  note  1.) 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  405 

be  submitted  to  a  board,  consisting  of  one  of  the  Assistant ,  Submission  to 

board  for  appro v- 

Secretaries  of  the  Treasury  and  Interior  Departments  and  al- 
one  of  the  Assistant  Postmasters-General,  who  shall  be 
designated  by  the  heads  of  said  Departments  and  the 
Postmaster-General  respectively,  at  a  meeting  to  be  called 
by  the  official  of  the  Treasury  Department,  who  shall  be 
chairman  thereof,  and  said  board  shall  carefully  examine 
and  compare  all  the  proposals  so  submitted  and  recommend 
the  acceptance  or  rejection  of  any  or  all  of  said  proposals. 

venient  such  an  omission  or  evasion  may  be,  can  legally  be  allowed,  (a)  So.  held 
that  it  was  no  excuse  for  a  noncompliance  with  the  statute  by  a  quartermaster,  that 
his  contracts  (made  without  advertisement)  had  been  made  with  the  most  reliable 
parties  and  to  the  advantage  of  the  United  States.  And,  held  that  the  requirement 
as  to  advertising  for  proposals  must  be  complied  with  in  contracting  for  a  supply  of 
articles  purchased  for  trial,  equally  as  if  the  contract  were  for  the  regular  yearly 
supplies.  (Dig.  Opiu.  J-  A.  G.,  275,  par.  2.) 

The  main  object  of  the  advertisement  is  to  induce  a  free  and  open  competition  for 
the  contracts  of  the  Government,  and  thus  to  protect  the  United  States  from  fradu- 
lent  combinations  and  collusive  preferences  in  its  business  transaction s.(b)  At  the 
same  time  the  advertisement,  in  inviting  proposals  from  the  public,  is  properly  to  be 
viewed  as  a  pledge  on  the  part  of  the  United  States  that  the  contract  will,  as  a 
general  rule,  be  awarded  to  the  lowest  bidder,  provided  he  is  a  responsible  person 
and  his  bid  is  a  reasonable  one,  and  provided,  of  course,  he  complies  with  the  exist- 
ing regulations  as  to  bond,  etc.  (Ibid.,  276,  par.  3.) 

A  military  emergency  can  not  be  measured  by  precise  rules.  Thompson  v.  U. 
S.,  9  C.  Cls.  R  ,  187.  The  act  of  March  2,  1861  (sec.  H709,  R.  S.),  requires  of  aquar- 
termaster  that  openness,  diligence,  prudence,  and  care  which  an  individual  might 
be  supposed  to  exercise  were  he  buying  goods  in  just  such  an  emergency  and  under 
just  such  circumstances.  *  *  *  A  statute  relating  to  national  emergencies  must 
necessarily  be  construed  liberally,  but  a  case  under  it  can  form  no  precedent  for 
other  cases.  What  was  right  lor  a  quartermaster  to  do  under  certain  circum- 
stances can  be  lawful  and  right  only  when  the  precise  circumstances  are  repeated. 
Childs  &  Co.  v.  U.  S,,  4  C.  Cls.  R.,  176. 

An  officer  charged  with  the  duty  of  making  a  contract,  or  purchase,  is  responsible 
under  the  laws  and  regulations  for  his  action.  Permission  or  orders  to  make  a  con- 
tract or  purchase  without  inviting  competition  will  not  justify  that  procedure,  and 
will  not  be  given.  (Par.  519,  A.  R.,  1895.) 

In  the  absenceof  any  emergency  in  fact,  or  any  declared  by  the  head  of  the  Depart- 
ment in  which  a  public  work  is  being  carried  on,  or  any  emergency  that  can  be 
judicially  inferred,  the  requirements  of  this  section,  in  respect  to  advertisement,  are 
mandatory,  and  a  contract  made  in  violation  of  it  is  void.  (Schneider  v.  U.  S.,  19 
C.  Cls.  R.,  547,  551.) 

Personal  services  are  such  as  the  individual  employed  or  contracted  with  must 
perform,  in  person,  directly  tinder  the  control  and  supervision  of  an  officer  or  agent 
of  the  Government,  as  distinguished  from  services  the  - 


delegated  by  the  contractor  to  others.  (Par.  518,  A.  R.,  1895.)  They  are  contracts  for 
expert  or  skilled  service  to  be  performed  by  the  contractor  in  person.  (Dig.  Opin. 
J.  A.  G.,  281,  par.  11.) 

Where  the  essential  part  of  a  contract  is  for  personal  services,  advertising  for  pro- 
posals under  section  3709,  Revised  Statutes,  is  not  required.  (2  Compt.  Dec.,  185.) 

Section  3709  does  not  require  the  advertising  for  proposals,  nor  the  entering  into 
contracts  for  the  purchase  of  patented  or  copyrighted  articles  where  the  benefit  of 
competition  can  not  be  secured.  (2  Compt.  Dec.,  632.)  For  provisions  of  regulations 
respecting  purchases,  etc.,  see  paragraphs  515-520,  Army  Regulations  of  1895. 


aSee  6  Opin.  Att.  Gen.,  406;  10  ibid. ,28;  also  opinion  of  the  Solicitor  General  of 
March  20, 1876  (15  Opin.,  539),  wherein,  in  holding  contracts  made  without  adver- 
tising to  be  not  binding  on  the  United  States,  he  dissents  from  the  opinion  of 
Attorney-General  Bates,  in  10  Opiu.,  416,  to  the  effect  that  while  an  absence  of  the 
prescribed  advertisement  will  render  illegal  and  inoperative  an  unexecuted  con- 
tract, the  Government  can  not,  on  account  of  such  omission,  rescind,  to  the  dam- 
age of  a  contractor,  a  contract  entered  into  by  him  in  good  faith  and  partly  per- 
formed. In  a  later  opinion  of  April  27,  1877  (15  Opin.,  236),  the  Attorney- General 
refers  to  the  question,  whether  the  provision  of  section  3709,  Revised  Statutes-, 
requiring  that  contracts  in  general  shall  be  preceded  by  advertisement,  is  manda- 
tory or  only  directory,  as  one  which  has  been  much  discussed  (see,  for  example, 
the  reference  to  this  question  in  Fowler  v.  U.  S.,  3  C.  Cls.  R.,  47),  but  is  not  required 
to  be  decided  in  that  opinion.  But  whatever  may  be  the  true  construction  of  this 
section,  it  is  clear  that  no  officer  of  the  Army,  in  the  absence  of  express  authority 
to  do  so  from  the  Secretary  of  War,  can  be  justified  in  omitting  to  comply  with  the 
provision  in  regard  to  advertising. 

feSee  Harvey  v.  U.  S.,  8  C.  Cls.  R.,  506.  In  regard  to  a  statute  (similar  to  section 
3709),  governing  the  Post-Office  Department,  the- Supreme  Court,  in  Garfield  v.  U.  S., 
3  Otto,  246,  say:  "The  object  of  the  statute  was  to  secure  notice,  *  *  *  that 
bidders  might  complete,  that  favoritism  should  be  prevented,  that  efficiency  and 
economy  in  the  service  should  be  obtained." 


406 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 


The  same. 


ited 


-  And  if  any  or  all  of  such  proposals  shall  be  rejected,  adver- 
meut  of  rejected  tiscments  for  prOposals  shall  again  be  invited  and  proceeded 
with  in  the  same  manner.     Sec.  1,  act  of  January  27, 1894 
(28  Stat.  L.,  33). 

1153.  That  the  Act  entitled  "An  Act  to  amend  section 
thirty-seven  hundred  and  nine  of  the  Revised  Statutes 
relating  to  contracts  for  supplies  in  the  Departments  at 
Washington,"  approved  January  twenty-seven,  eighteen 
hundred  and  ninety-four,  be,  and  the  same  is  hereby,  so 
Provisions iim  amended  that  the  provisions  thereof  shall  apply  only  to 
sec. 3709, R.S.  advertisements  for  proposals  for  fuel,  ice,  stationery,  and 
other  miscellaneous  supplies  to  be  purchased  at  Washing- 
ton for  the  use  of  the  Executive  Departments  and  other 
Government  establishments  therein  named;  and  no  adver- 
Contracts.etc.,  tisements  made  or  contracts  awarded  or  to  be  awarded 
thereon  since  January  twenty-seven,  eighteen  hundred 
and  ninety-four,  in  accordance  with  the  laws  in  force  prior 
to  said  date,  shall  be  declared  to  be  illegal  or  invalid  for 
non  compliance  with  said  law  of  January  twenty-seventh, 
eighteen  hundred  and  ninety-four.  Act  of  April  21,  1894 
(28  Stat.  L.,  62). 

ADVERTISING. 


not  invalid. 


Par. 

1154.  No  advertising  without  au- 

thority. 

1155.  Rates  of  advertising. 

1156.  Proclamations,   etc;    adver- 

tisements   in    District    of 
Columbia;  limitation. 

1157.  The  same. 

1158.  Advertising  for  supplies  for 

Quartermaster's     Depart- 
ment. 

1159.  Separate  proposals  and  con- 

tracts. 

NO  advertising     1154,  No  advertisement,  notice,  or  proposal  for  any  Execu- 
u"  tive  Department  of  the  Government,  or  for  any  Bureau 


Par. 

1160.  Two  or  more  works  in  one 

contract,  etc. 

1161.  Secretary  of  War  to  pre- 

scribe rules,  etc. ;  bond. 

1162.  Opening  bids;  notification. 

1163.  American  material  to  be  pre- 

ferred for  public  improve- 
ments. 

1164.  Bunting. 


thereof,  or  for  any  office  therewith  connected,  shall  be  pub- 
3(sec.  3828,  R.  s.  lished  in  any  newspaper  whatever,  except  in  pursuance  of 
a  written  authority  for  such  publication  from  the  head  of 
such  Department;  and  no  bill  for  any  such  advertising,  or 
publication,  shall  be  paid,  unless  there  be  presented,  with 
such  bill,  a  copy  of  such  written  authority.1 

1  The  requirements  of  section  3828,  Eevised  Statutes,  are  complied  with  by  the 
issue  of  a  general  circular  of  instructions,  and  it  is  not  necessary  to  file  authority 
with  each  particular  bill.  (Compt.  Dec.,  1893-94,  103  ;  U.  S.  v.  Odeneal,  10  Fed.  Rep., 
616.) 

By  the  terms  of  section  3709,  Revised  Statutes,  and  the  acts  of  July  5,  1884  (23 
Stat.  L.,  109),  and  February  12,  1895  (28  Stat.  L.,  654),  advertising  is  required  prior 


THE   MILITARY    LAWS   OF   THE    UNITED    STATES.  407 

1155.  That  hereafter  all  advertisements,  notices,  propos-    Kates  of  ad  ver- 
als  for  contracts,  and  all  forms  of  advertising  required  by  'june  20,  isis, 
law  for  the  several  departments  of  the  government  may  be  v'  20>  p*  216' 
paid  for  at  a  price  not  to  exceed  the  commercial  rates 

charged  to  private  individuals,  with  the  usual  discounts; 
such  rates  to  be  ascertained  from  sworn  statements  to  be 
furnished  by  the  proprietors  or  publishers  of  the  news- 
papers proposing  so  to  advertise:  Provided,  That  all  adver- 
tising in  newspapers  since  the  tenth  day  of  April,  eight- 
een hundred  and  seventy-seven,  shall  be  audited  and  paid 
at  like  rates  ;  but  the  heads  of  the  several  departments 
may  secure  lower  terms  at  special  rates  whenever  the  pub- 
lic interest  requires  it.  Act  of  June  20,  1878  (20  Stat.  L., 
216). 

1156.  That  all  executive  proclamations,  and  all  treaties    Proclamations, 


required  by  law  to  be  published,  shall  be  published  in  only  ments 
one  newspaper  the  same  to  be  printed  and  published  in  the  Sa 
District  of  Columbia  and  to  be  designated  by  the  Secre-  igfj^ios.1  1876)  v' 
tary  of  State  and  in  no  case  of  advertisement  for  contracts 
for  the  public  service  shall  the  same  be  published  in  any 
newspaper  published  and  printed  in  the  District  of  Colum- 
bia unless  the  supplies  or  labor  covered  by  such  advertise- 
ment are  to  be  furnished  or  performed  in  said  District  of 
Columbia.  Act  of  July  31,  1876  (19  Stat.  L.,  105}. 

•  1157.  That  all  advertising  required  by  existing  laws  to    The  same. 
be  done  in  the  District  of  Columbia  by  any  of  the  depart-  21,  pn3n.' 

^P*»  ^?S28    R  ^1 

ments  of  the  government  shall  be  given  to  one  daily  and 
one  weekly  newspaper  of  each  of  the  two  principal  political 

to  purchase  in  the  case  of  "  all  supplies  for  the  use  of  the  variou£  departments  and 
posts  of  the  Army  and  all  branches  of  the  Army  service,"  including  the  procure- 
ment of  steel  for  gun  construction.  Advertising  may  be  dispensed  with  in  the 
emergency  contemplated  in  section  3709  of  the  Revised  'Statutes;  in  the  purchase  of 
certain  ordnance  stores,  when  the  aggregate  of  said  purchase  does  not  exceed  $200 
(act  of  July  16,  1892,  27  Stat.  L.,  174),  and  in  the  purchase  of  medicines  and  medical 
supplies  (act  of  February  27,  1893,  27  Stat.  L.,  478).  See,  also,  notes  to  paragraph 
1151,  ante. 

A  disbursing  officer  is  not  authorized  to  pay  bills  for  newspaper  advertising  when 
he  is  satisfied  that  the  price  exceeds  the  commercial  rates  charged  to  private  indi- 
viduals, with  the  usual  discounts,  notwithstanding  the  affidavit  of  the  proprietor  of 
the  newspaper  to  the  contrary.  (1  Compt.  Dec.,  312.) 

When  the  proprietors  of  a  newspaper  show  by  affidavit  that  the  rates  theretofore 
sworn  to  by  them  were,  although  not  so  limitecl,  intended  simply  to  cover  advertis- 
ing of  a  certain  kind,  they  may  be  paid  at  their  usual  commercial  rates  for  adver- 
tising not  of  the  kind  intended  by  their  first  statement  ot  rates.  (Ibid.,  373.) 

When  advertising  in  connection  with  the  purchase  of  subsistence  supplies  for  the 
Army  is,  by  law,  a  necessary  condition  precedent  to  the  purchase  of  such  supplies, 
and  there  is  no  specific  appropriation  for  such  advertising,  the  cost  thereof  is 
properly  chargeable  to  the  appropriation  "Subsistence  of  the  Army."  (3  Dig.  Compt. 
Dec.,  23'.) 

Under  section  3709  of  the  Revised  Statutes,  and  paragraph  1486  of  the  Army  Regu- 
lations (1881),  the  length  of  time  for  the  publication  of  advertisements  inviting 
proposals  for  furnishing  Army  supplies  was  left  somewhat  to  the  discretion  of  the 
purchasing  officer,  but  the  act  of  July  5,  1884  (23  Stat.  L.,  109),  has  fixed,  in  all 
cases,  excepting  emergency  purchases,  the  minimum  period  during  which  public 
notice  shall  be  given,  authorizing  the  purchase  of  "small  amounts  for  immediate 
use"  after  public  notice  of  not  less  than  ten  days,  while  all  other  purchases  are 
required  to  be  made  after  public  notice  of  not  less  than  thirty  days.  (Ibid.,  23.) 

tinder  the  Army  Regulations,  advertisement  may  be  made  by  handbills,  but  when 
this  method  is  resorted  to  it  must  be  shown  that'  the  handbills  were  circulated  to 
such  an  extent  as  to  render  it  probable  that  a  large  number  of  persons  engaged  in 
the  business  of  furnishing  the  articles  desired  had  thus  been  afforded  an  opportunity 
to  compete  for  the  contract  -which  was  to  be  let.  (Ibid.,  24.) 


408  THE   MILITARY    LAWS    OF   THE    UNITED    STATES. 

parties  and  to  one  daily  and  one  weekly  neutral  newspaper  : 
Provided,  That  the  rates  of  compensation  for  such  service 
shall  in  no  case  exceed  the  regular  commercial  rate  of  the 
newspapers  selected;  nor  shall  any  advertisement  be  paid 
for  unless  published  in  accordance  with  section  thirty-eight 
hundred  and  twenty-eight  of  the  Revised  Statutes.  Act 
of  January  21,  1881  (21  Stat.  L.,  317}. 
Advertise-  1158.  The  Quartermaster's  Department  of  the  Army,  in 

IlK'lltS      for      SUp  ...  .  .,  'i-i 

plies  for  Quar  obtaining  supplies  tor  the  military  service,  shall  state  in  all 
*     *  advertisements  for  bids  for  contracts  that  a  preference 


'p!  shall  be  given  to  articles  of  domestic  production  and  manu- 
92Sec.37i6,R.s.  facture,  conditions  of  price  and  quality  being  equal,  and 
that  such  preference  shall  be  given  to  articles  of  American 
production  and  manufacture  produced  on  the  Pacific  coast, 
to  the  extent  of  the  consumption  required  by  the  public 
service  there.  In  advertising  for  Army  supplies  the  Quar- 
termaster's Department  shall  require  all  articles  which 
are  to  be  used  in  the  States  and  Territories  of  the  Pacific 
coast  to  be  delivered  and  inspected  at  points  designated  in 
those  States  and  Territories  ;  and  the  advertisements  for 
such  supplies  shall  be  published  in  newspapers  of  the  cities 
of  San  Francisco,  in  California,  and  Portland,  in  Oregon. 

BIDS  AND  PROPOSALS. 

Separate   pro-     1159.  Whenever  the  Secretary  of  War  invites  proposals 

posals    and  con-  . 

tracts  for  any  works,  or  for  any  material  or  labor  for  works,  there 

^IAI*   ^717    US 

*  shall  be  separate  proposals  and  separate  contracts  for  each 
work,  and  also  for  each  class  of  material  or  labor  for  each 
work.1 

TWO  or  more     1160.  That  nothing  contained  in   section  thirty  -seven 

works  in  one  con-  hundred  and  seventeen  of  the  Revised  Statutes  of  the 

rR.se,  sec.  3717,  United  States,  nor  in  section  three  of  the  river  and  harbor 

myh25.fp.423.    act  of  August  eleventh,   eighteen  hundred   and  eighty  - 

i89o,Cv2'26?p!452l  eight,  shall  be  so  construed  as  to  prohibit  or  prevent  the 

cumulation  of  two  or  more  works  of  river   and  harbor 

improvement  in  the  same  proposal  and  contract,  where  such 

works  are  situated  in  the  same  region  and  of  the  same  kind 

or  character.     Sec.  2,  act  of  September  19,  1890  (26  Stat. 

L.,  452). 

Secretary  of     1161.  That  the  Secretary  of  War  is  hereby  authorized  to 

rifUVTTt".!  prescribe  rules  and  regulations  to  be  observed  in  the 

b°Apr'.  10,  1878,  preparation  and  submission  and  opening  of  bids  for  con- 

v.  20,  p.  se.        tracts  under  the  War  Department.     Act  of  April  10,  1878 

(20  Stat.  L.,  36). 


1  The  subject  of  advertising  in  the  War  Department  and  its  several  bureaus  and 
offices,  and  in  the  military  establishment  generally,  is  regulated  by  the  provisions  of 
paragraphs  520-524,  Army  Regulations  of  1895.  See  note  to  paragraph  1154,  supra. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  409 

And  he  may  require  every  bid  to  be  accompanied  by  a  Bonds, 
written  guarantee,  signed  by  one  or  more  responsible  22,  pai488.1883'v' 
persons,  to  the  effect  that  he  or  they  undertake  that  the 
bidder,  if  his  bid  is  accepted,  will,  at  such  time  as  may  be 
prescribed  by  the  Secretary  of  War  or  the  officer  authorized 
to  make  a  contract  in  the  premises,  give  bond,  with  good 
and  sufficient  sureties,  to  furnish  the  supplies  proposed  or 
to  perform  the  service  required.  If  after  the  acceptance  of 
a  bid  and  a  notification  thereof  to  the  bidder  he  fails  within 
the  time  prescribed  by  the  Secretary  of  War  or  other  duly 
authorized  officer  to  enter  into  a  contract  and  furnish  a 
bond  with  good  and  sufficient  security  for  the  proper  fulfill- 
ment of  its  terms,  the  Secretary  or  other  authorized  officer 
shall  proceed  to  contract  with  some  other  person  to  furnish 
the  supplies  or  perform  the  service  required,  and  shall 
forthwith  cause  the  difference  between  the  amount  specified 
by  the  bidder  in  default  in  the  proposal  and  the  amount  for 
which  he  may  have  contracted  with  another  party  to  fur- 
nish the  supplies  or  perform  the  service  for  the  whole  period 
of  the  proposal  to  be  charged  up  against  the  bidder  and  his 
guarantor  or  guarantors,  and  the  sum  may  be  immediately 
recovered  by  the  United  States  for  the  use  of  the  War 
Department  in  an  action  of  debt  against  either  or  all  of 
such  persons.  Act  of  March  <?,  1883  (22  Stat.  L.,  488). 

1162.  Whenever  proposals  for  supplies  have  been  solic-    opening  bids, 
ited,  the  parties  responding  to  such  solicitation  shall  be  n°janCat3i n  ises, 
duly  notified  of  the  time  and  place  of  opening  the  bids,  Se8'  8>  v  15'  p' 
and  be  permitted  to  be  present  either  in  person  or  by    Sec-8710»B's- 
attorney,  and  a  record  of  each  bid  shall  then  and  there  be 

made. 

1163.  That  in  all  contracts  for  material  for  any  public    American  ma 
improvement,  the  Secretary  of  War  shall  give  preference  forlapubiic  Tm- 
to  American  material ;  and  all  labor  thereon  shall  be  per.  prLaboreon8same. 
formed  within  the  jurisdiction  of  the  United  States.     Sec.  18^.18,^455?' 
2,  act  of  March  3,  1875  (18  Stat.  L.,  455). 

1164.  The  Secretary  of  War,  the  Secretary  of  the  Navy,    Bunting. 
and  the  Secretary  of  the  Treasury  may  enter  into  contract,  74, «.  7,V  it,  £ 
in  open  market,  for  bunting  of  American  manufacture,  as    s'ec.8729,R.s. 
their  respective  services  require,  for  a  period  not  exceeding 

one  year,  and  at  a  price  not  exceeding  that  at  which  an 
article  of  equal  quality  can  be  imported. 


410  THE   MILITARY   LAWS   OP  THE   UNITED   STATES. 

MISCELLANEOUS  PROVISIONS. 


Par. 

1165.  Purchase  of  supplies,   con- 

ditions of. 

1166.  Purchases,    where    made; 

open     market    purchases 
not  exceeding  $200. 

1167.  Cavalry  and  artillery  horses. 

1168.  The    same;    limitations    on 

purchases. 

1169.  Draught  animals;  limit  of 

purchases. 

1170.  Purchase  of  means  of  trans- 

portation. 

1171.  Transportation  of  stores, 

etc.,  by  contract. 


Par. 

1172.  Limit  of    expenditures    on 

buildings  and  grounds. 

1173.  Post    bakeries,    schools, 

kitchens,  gardens,  etc. 

1174.  Post  gardens  and  exchanges. 

1175.  Contracts    for    subsistence 

supplies. 

1176.  Purchase  of  medicines,  etc. 

1177.  Purchases    of  ordnance    in 

open  market;  limitation. 

1178.  Name  of  contractor  to  ap- 

pear on  supplies. 


Purchase  of  1165.  That  hereafter  all  purchases  of  regular  and  miscel- 
tSns  Iff8'  l  laneous  supplies  for  the  Army  furnished  by  the  Quarter- 
23,  P.'IOQ  master's  Department  and  by  the  Commissary  Department 

for  immediate  use  shall  be  made  by  the  officers  of  such 
Department,  under  direction  of  the  Secretary  of  War,  at 
the  places  nearest  the  points  where  they  are  needed,  the 
conditions  of  cost  and  quality  being  equal:  Provided  also, 
That  all  purchases  of  .said  supplies,  except  in  cases  of  emer- 
gency, which  must  be  at  once  reported  to  the  Secretary 
of  War  for  his  approval,  shall  be  made  by  contract  after 
public  notice  of  not  less  than  ten  days  for  small  amounts 
for  immediate  use,  and  of  not  less  than  from  thirty  to  sixty 
days  whenever,  in  the  opinion  of  the  Secretary  of  War,  the 
circumstances  of  the  case  and  conditions  of  the  service 
shall  warrant  such  extension  of  time.  The  award  in  every 
case  shall  be  made  to  the  lowest  responsible  bidder  for  the 
best  and  most  suitable  article,  the  right  being  reserved  to 
reject  any  and  all  bids.1  Act  of  July  5, 1884  (23  Stat.  L.,  109). 

1  The  object  of  this  provision  is  to  secure  the  Government  the  benefit  arising  from 
competition.  It  is  expected  that  this  benefit  will  manifest  itself  in  the  selection  of 
the  best  and  most  suitable  supplies  for  the  least  expenditure  of  public  monev. 
Where  the  prices  for  supplies  are  fixed  and  uniform,  it  is  unusual  and  impracticable 
to  advertise  for  proposals.  Such  cases  are  not  within  the  meaning  of  the  statute. 
(3  Dig.  Compt.  Dec.,  287  )  Expenditures  for  water  and  gas  are  not  expenditures  for 
supplies  within  the  meaning  of  this  act  (Ibid.)  So  held  also  as  to  street  car 
tickets.  (Ibid.,  290.) 

The  officers  of  the  Quartermaster's  Department  are  not  bound  to  award  contracts 
to  the  lowest  bidder  in  every  instance,  but  only  to  the  lowest  responsible  bidder  for 
the  best  and  most  suitable  article,  in  case  the  right  to  reject  "any  and  all  bids," 
which  the  statute  reserves,  is  not  exercised.  (3  Dig.  Compt.  Dec.,  110  ) 

Evidence  of  compliance  with  the  requirements  of  this  statute  should  accompany 
all  contracts  filed  in  the  Second  Comptroller  s  Office.  (Ibid.,  108.) 

Whenever  an  officer  of  the  Army  enters  into  a  contract  on  behalf  of  the  Govern- 
ment for  the  purchase  of  quartermaster  s  or  subsistence  supplies,  under  the  author- 
ity conferred  by  this  statute,  it  should  be  made  to  appear  by  the  certificate  ol  the 
officer  that  the  supplies  were  required  for  immediate  use.  The  officer  should  also 
certify  as  to  the  time  and  manner  of  the  advertisement,  and  that  the  award  was 
made  to  the  lowest  responsible  bidder  for  the  best  and  most  suitable  article.  (Ibid., 
108.) 

Under  the  act  of  July  5,  1884  (23  Stat.  L.,  109),  there  are  four  classes  of  purchases 
of  army  supplies  made  by  the  Quartermaster  and  Subsistence  Departments,  namely: 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  411 


1166.  That  after  advertisement  all  the  supplies  for  the 

where  made. 

use  of  the  various  departments  and  posts  of  the  Army  and2gFeb^i2,i895,v. 

of  all  branches  of  the  Army  service  shall,  hereafter,  be 

purchased  where  the  same  can  be  purchased  the  cheapest, 

quality,  cost  of  transportation,  and  the  interests  of  the 

Government  considered,  except  that  purchases  may  be 

made  in  open  market,  in  the  manner  common  among  busi-    Op6*1  market 

purchases     not 

newsmen,  when  the  aggregate  amount  required  does  not  exceeding  $200. 
exceed  two  hundred  dollars,  but  every  such  purchase  shall 
be  immediately  reported  to  the  Secretary  of  War.1     Act  of 
February  12,  1895  (28  Stat.  £.,  659). 

1167.  Hereafter  all  purchases  of  horses  under  appro-    cavairyand 

•    A-  /.-i  n          i  i  -i-^  -i/.       artillery   horses. 

priations  for  horses  for  the  cavalry  and  artillery  and  for    July  5,  1884,  v. 
the  Indian  scouts  shall  be  made  by  contract,  after  legal    'p< 
advertisement,  by  the  Quartermaster's  Department,  under 
instructions  of  the  Secretary  of  War,  the  horses  to  be 
inspected  under  the  orders  of  the  General  commanding 
the  Army;  and  no  horse  shall  be  received  and  paid  for 
until  duly  inspected.     Act  of  July  5,  1884  (23  Stat.  L.,  109). 

1168.  That  the  number  of  horses  purchased  under  this    Limitation  on 
appropriation,  added  to  the  number  on  hand,  shall  not  at^JFebfilfisos,  v. 
any  time  exceed  the  number  of  enlisted  men  and  Indian    '  p' 
scouts  in  the  mounted  service;  and"  that  no  part  of  this 
appropriation  shall  be  paid  out  for  horses  not  purchased  by 
contract,  after  competition  duly  invited  by  the  Quarter- 

master's Department,  and  an  inspection  by  such  Depart- 

First,  "emergency  purchases,"  which  must  be  at  once  reported  to  the  Secretary 
of  War  for  his  approval;  second,  purchases  of  "small  amounts  for  immediate 
use,"  which  must  he  made  "by  contract  after  public  notice  of  not  less  than  ten 
days;  "  third,  purchases  of  the  great  bulk  of  army  supplies,  which  must  be  made 
under  the  general  rule  prescribed  by  the  Army  Regulations,  that  is,  after  public 
notice  of  not  less  than  thirty  days;  and  fourth,  unusual  and  important  purchases, 
where  the  Secretary  of  War  deems  public  notice  of  from  thirty  to  sixty  days  advis- 
able. (Ibid.,  288.) 

In  all  cases  where  purchases  of  regular  or  miscellaneous  supplies  for  the  Army 
are  made  by  the  Quartermaster's  Department  or  by  the  Subsistence  Department 
after  public  notice  often  days  or  more,  without  executing  formal  written  contracts, 
the  vouchers  therefor  must  be  accompanied  by  the  following  evidence,  namely: 
First,  a  copy  of  the  public  notice  for  bids;  second,  a  certificate  as  to  the  time  and 
manner  of  the  public  notice  for  bids;  third,  the  accepted  bid;  fourth,  a  copy  of  the 
letter  accepting  the  bid  ;  and  fifth,  a  certificate  that  the  award  was  made  to  the  lowest 
responsible  bidder  for  the  best  and  most  suitable  article.  (Ibid.,  p.  289.) 

The  object  of  this  legislation  is  to  secure  for  the  Government  the  benefit  of  com- 
petition in  obtaining  supplies  and  to  prevent  favoritism  in  making  the  purchases 
thereof.  It  contemplates  one  general  mode  of  purchase,  namely,  by  contract,  after 
advertisement,  with  "the  lowest  responsible  bidder  for  the  best  and  most  suitable 
article,"  with  but  a  single  exception,  and  that  is  where  an  "emergency"  exists 
requiring  the  purchase  to  be  otherwise  made.  Such  emergency  may  arise  not  only 
befoie  the  required  public  notice  can  be  given,  but  after  it  has  once  been  given, 
in  consequence  of  the  failure  to  receive  any  bids  or  proposals  ;  in  either  case  the  pur- 
chase thereupon  would  be  an  emergency  purchase,  and  come  within  the  requirement 
of  the  statute  for  an  immediate  report  to  the  Secretary  of  War  for  his  approval. 
This  requirement  is,  I  think,  designed  to  extend  to  all  purchases  which  are  not 
made  agreeably  to  the  general  mode  above  indicated,  and  hence  it  applies  to  the 
purchase  of  parts  of  machinery,  or  parts  of  stoves  or  ranges,  for  repairs,  or  of  patented 
articles,  when  the  same  is  (as  in  cases  of  emergency,  and  those  only,  it  may  be)  made 
in  open  market.  (18  Opin.  Att.  Gen.,  349.) 

'See  acts  of  June  30,  1886  (24  Stat.  L.,  96)  ;  February  9,  1887  (ibid.,  397)  ;  September  22 
]888  (25  ibid.,  484)  ;  March  2,  1889  (ibid.,  829)  ;  June  13,  1890  (26  ibid.,  152)  ;  February 
24,  1891  (ibid.,  774)  ;  July  16,  1892  (27  ibid.,  178)  ;  February  27,  1893  (ibid.,  482)  ;  August 
6,  1894  (28  ibid.,  238). 


412  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

inent,  all  under  the  direction  and  authority  of  the  Secretary 

of  War. l     Act  of  February  12,  1895  (28  Stat.  L.,  660). 

Draught  airi-     1169.  Hereafter  no  part  of  this  appropriation  shall  be 

purchases.         expended  in  the  purchase  for  the  Army  of  draught  ani- 

24,V-  398;  septimals  until  the  number  on  hand  shall  be  reduced  to  five 

lie.18  P'  thousand,  and  thereafter  shall  only  be  expended  for  the 

purchase  of  a  number  sufficient  to  keep  the  supply  up  to 

five  thousand.     Act  of  September  22, 1888  (25  Stat.  L.,  486). 

Purchase  of     H7Q.  Hereafter  all  purchases  of  horses,  mules,  or  oxen, 

means  of  trans- 

P°juiti05n'i884  v  wag°ns?  carts,  drays,  ships  and  other  seagoing  vessels, 

23,  p  no.  also  all  other  means  of  transportation,  shall  be  made  by 

the  Quartermaster's  Department,  by  contract,  after  due 

legal  advertisement  except  in  cases  of  extreme  emergency. 

Act  of  July  5,  1884  (23  Stat.  L.,  110). 

[.  In  time  of  peace  the  number  of  draught  and  pack 


cojuTaC5*  1884  v  anima^s  *n  the  Quartermaster's  Department  of  the  Army 

23,  P.  ICQ.  shall  not  exceed  five  thousand;  that  all  transportation  of 

stores  by  private  parties  for  the  Army  shall  be  done  by 

contract,  after  due  legal  advertisement,  except  in  cases  of 

emergency,  which  must  be  at  once  reported  to  the  Secretary 

•  of  War  for  his  approval.     Ibid.  (23  Stat.  L.,  109). 

f  endftures'on     H72.  That  hereafter  no  expenditures  exceeding  five  hun- 


broundsng8  and  dred  dollars  shall  be  made  upon  any  building  or  military 
27Fe  4*84^'  1893.  v-  post,  or  grounds  about  the  same,  without  the  approval  of 
the  Secretary  of  War  for  the  same,  upon  detailed  estimates 
by  the  Quartermaster's  Department;  and  the  erection,  con- 
struction,  and  repair  of  all  buildings  and  other  public 
structures  in  the  Quartermaster's  Department  shall,  as  far 
as  may  be  practicable,  be  made  by  contract,  after  due  legal 
advertisement.2    Act  of  February  27,  1893  (27  Stat.  L.,  484). 
Post  bakeries,     1173.  That  for  the  current  fiscal  year  and  thereafter 

schools,   kitch- 

ens, gardens,  etc.  there  may  be  expended  from  the  appropriation  for  regular 

v.  26,  P.  152.       '  supplies  the  amounts  required  for  the  necessary  equip- 

ments of  the  bake-house  to  carry  on  post  bakeries  ;  for  the 

1  This  paragraph  has  appeared,  as  a  proviso,  in  each  annual  appropriation  bill 
since  June  30,  1886.  See  acts  of  Juue  30,  1886  (24  Stat.  L.,  97)  ;  February  5,  1887  (24 
ibid.,  398)  ;  September  22,  1888  (25  ibid.,  485)  ;  March  2.1889  (ibid.,  830)  ;  June  13.  1890 
(26  ibid.,  153)  ;  February  24,  1891  (ibid..  775)  ;  July  16,  1892  (27  ibid.,  179)  ;  February 
27,1893  (ibid.,  483);  August  6.  1894  (28  ibid.,  239)  ;  February  12,  1895  (ibid.,  660). 
The  several  acts  of  appropriation  for  the  support  of  the  Army  since  that  of  June  30, 
1886  (24  Stat.  L.,  96),  have  contained  a  proviso  that  no  part  of  the  appropriations 
"shall  be  expended  for  printing  unless  the  same  shall  be  done  by  contract,  after  due 
notice  and  competition,  except  in  such  case  as  the  emergency  will  not  admit  of  the 
giving  notice  for  competition." 


3  This  paragraph  continued  to  appear  as  a  proviso  in  several  acts  of  appropriation 
for  the  support  of  the  Army  prior  to  the  act  of  Februarv27,  18 


1893  (27  Stat.  L.,  454).    See 

acts  of  March  3,  1885  (23  Stat,  L.,  360);  June  30,  1886  (24  ibid.,  97)  ;  February  9,  1887 
(ibid.,  399)  ;  September  22,  1888  (25  ibid.,  486)  ;  March  2,  1889  (ibid.,  830)  ;  June  13,  1890 
(26  ibid.,  154)  ;  February  24,  1891  (ibid.,  776)  ;  July  16,  1892  (27  ibid.,  180)  ;  February 
27,  1893  (ibid.,  484).  The  same  act  requires  that  the  posts  at  which  hospital  stew- 
ards' quarters  are  to  be  constructed  shall  be  designated  by  the  Secretary  of  War, 
and  that  such  quarters  shall,  whenever  practicable,  be  built  by  contract.  (27  Stat. 
L.,  484.) 


THE   MILITARY   LAWS   OF   THE   USHPElHsfATES.  413 

necessary  furniture,  text- books,  paper  and  equipments  of 
the  post  schools ;  for  the  tableware  and  mess  furniture  for 
kitchens  and  mess  halls ;  *  *  *  each  and  all  for  use 
of  the  enlisted  men  of  the  Army.  Act  of  June  13, 1890  (26 
Stat.  L.,  152). 

1174.  That  hereafter  no  money  appropriated  for  the  sup-    Post   gardens 

and  exchanges. 

port  of  the  Army  shall  be  expended  for  post  gardens  or  Juiyi6,i892,v. 
exchanges,  but  this  proviso  shall  not  be  construed  to  pro- 
hibit the  use  by  post  exchanges  of  public  buildings  or 
public  transportation  when,  in  the  opinion  of  the  Quarter- 
master General,  not  required  for  other  purposes.  Act  of 
July  16,  1892  (27  Stat.  L.,  178). 

1175.  Contracts  for  subsistence  supplies  for  the  Army,    contracts  for 

"  '  subsistence  sup- 
made  by  the  Commissary  General,  on  public  notice,  shall  plies. 

,  m  -A.pr.  14, 1818,  c. 

provide  for  a  complete  delivery  of  such  articles,  on  inspec-6i,s.7,v.3,P.427; 

*1  Mar.  3, 1835,  c.  49, 

tion,  at  such  places  as  shall  be  stipulated.  s.  i,  v.  *  P.  7so; 

Mar  2, 1861,  c.  84,  s.  10,  v.  12,  p  220.     Sec.  3715,  B.  S. 

1176.  That  hereafter  so  much  of  section  thirty  seven    Purchase    of 

,','''.'',-  -r*  ,   -,  ,          A .         medicines,  etc. 

hundred  and  nine,1  Kevised  Statutes,  as  requires  advertise     Feb.  27,  isos,  v. 
ment  before  purchase  shall  not  apply  to  the  purchase  of 
medicines  and  medical  supplies.    Act  of  February  27, 1893 
(27  Stat.  L.,  485). 

1177.  Purchase  of  ordnance  and  ordnance  stores  and    Purchases    of 

ordnance  in  open 

supplies  may  be  made  by  the  Ordnance  Department  in  open  market;   nmita- 
market,  in  the  manner  common  among  business  men,  when    Aug.  e,  1894,  v. 
the  aggregate  of  the  amount  required  does  not  exceed  two 
hundred  dollars,  but  every  such  purchase  shall  be  immedi- 
ately reported  to  the  Secretary  of  War.    Act  of  August  6, 
1894  (28  Stat.  L.,  242). 

1178.  Every  person  who  shall  furnish  supplies  of  any    Name  of  con- 

*  tractor  to  appear 

kind  to  the  Army  or  Navy  shall  be  required  to  mark  and  on  supplies, 
distinguish  the  same  with  the  name  of  the  contractor  fur-  MO,  •fi&.V.  12' p! 
nishing  such  supplies,  in  such  manner  as  the  Secretary  of   s'ec.373i,B.s. 
War  and  the  Secretary  of  the  Navy  may,  respectively, 
direct 5   and  no  supplies  of  any  kind  shall  be  received, 
unless  so  marked  and  distinguished. 


1  Paragraphs  1151-1153,  ante. 


414 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


MISCELLANEOUS  PROVISIONS. 


Par. 

1179.  Contracts  for  stationery,etc., 

limited  to  one  year. 

1180.  Transfers  of  contracts  pro- 

hibited. 

1181.  Members  of  Congress  not  to 

be  interested  in  contracts. 

1182.  The  same ;  what  interest  al- 

lowable. 

1183.  Stipulation  that  no  Member 

of  Congress  has  an  interest. 


Par. 

1184.  The  same;  penalty. 

1185.  Contracts  to  be  filed  with 

auditors. 

1186.  Inspection  of  fuel  in  the 

District  of  Columbia. 

1187.  Appointments  of  weighers, 

etc.,  to  be  certified  to  ac- 
counting officers. 

1188.  No  payments  for  fuel  with- 

out certificate. 


contracts  for  1179.  It  shall  not  be  lawful  for  any  of  the  Executive  De- 
limiTeTtoonepartments  to  make  contracts  for  stationery  or  other  sup- 
yejan.  31,  1868,  plies  for  a  longer  term  than  one  year  from  the  time  the 

Res.  No.  8,v.  15, 

p.  246.  contract  is  made. 

Sec.3735,R.  S. 

Transfers  of     1180,  No  contract  or  order,  or  any  interest  therein,  shall 

Sdtract8proMb"  be  transferred  by  the  party  to  whom  such  contract  or  order 

2ooUslyi4!7v.1i2!'p!  is  given  to  any  other  party,  and  any  such  transfer  shall 

59sec.3737  B.s.  cause  the  annulment  of  the  contract  or  order  transferred, 

so  far  as  the  United  States  are  concerned.    All  rights  of 

action,  however,  for  any  breach  of  such  contract  by  the 

contracting  parties,  are  reserved  to  the  United  States.1 

1  This  clause  is  imperative  and  bars  any  action  by  the  assignor  as  well  as  the 
assignee.  Wanless  v.  U.  S.,  6  C.  Cls.  R.,  123.  The  purpose  of  the  act  of  July  17, 1862 
(sec.  3737,  R.  S.),  prohibiting  the  transfer  of  Government  contracts,  -was  to  secure  the 
personal  attention  and  services  of  the" contractor  and  to  render  him  liable  to  punish- 
ment under  section  16  of  the  same  act.  *  *  *  No  formal  or  written  transfer  is 
necessary  to  bring  the  case  within  the  prohibition  of  the  act.  It  is  sufficient  to 
annul  the  contract  that  the  facts  disclose  a  substantial  transfer.  Francis  v.  U.  S.,  11 
C.  Cls.  R.,  638;  Wheelan  v.  U.  S.,  5  C.  Cls.  R.,  504;  McCord's  Case,  9  C.  Cls.  R.,155. 

In  view  of  the  positive  prohibition  of  section  3737,  Revised  Statutes,  that  no  con- 
tract or  interest  therein  shall  be  transferred  by  the  contractor,  and  the  further  pro- 
vision that  any  such  transfer  shall  operate  as  an  annulment  of  the  contract,  "  so  far 
as  the  United  States  are  concerned,"  held  that  an  officer  of  the  Army  representing 
the  United  States  in  a  contract  for  military  transportation  would  not  be  authorized, 
of  his  own  discretion,  to  consent  or  waive  objection  to  an  assignment,  in  whole  or 
in  part,  of  a  contract,  bv  the  contractor,  so  as  to  admit  the  assignee  to  perform  the 
service. (a)  (Dig.  Opin.  J.  A.  G-,  284,  par.  18.) 

Where  a  contract  has  been  once  formally  entered  into  with  a  certain  party,  for 
the  officer  representing  the  United  States  to  assume  to  admit  additional  parties  into 
the  agreement  and  undertaking  (thus  in  fact  consenting  to  a  transfer  by  the  con- 

a  That  an  assignment  of  a  contract  transfers  no  legal  claim  or  right  of  action  to 
the  assignee,  and  that  a  contract  when  assigned  is  no  longer  binding  upon  the  United 
States,  see  Wheeler  v.  U.  S.,  5  C.  Cls.  R.,  504;  Wanless  v.  U.  S.,  6  ibid.,  123;  Gill  v. 
U.S.,  7  ibid.,  523;  McCordv.U.  S.,9ibid.,  156;  Francis  t>.U.  S.,  11  ibid.,  638;  10  Opm. 
Att.  Gen.,  523.  But  it  has  been  held  by  the  Attorney-General  that  the  statute  on 
the  subject  (sec.  3737,  R.  S.)  is  intended  simplv  for  the  benefit  and  protection  of 
the  United  States,  which,  therefore,  isnotcoiiipelledtoavailitselfof  a  transfer  bythe 
contractor  to  annul  the  contract,  but  may  recognize  the  same  and  accept  and  pay  the 
assignee.  "  Were  it  to  bo  held,"  observes  the  Attorney-General,  "  that  a  trausferof 
an  interest  would  absolutely  avoid  the  contract,  it  would  enable  any  party  making  a 
contract  with  the  United  States  toavoidit  by  simplytransferriuganinteresttherein, 
which  is  a  construction  manifestly  inadmissible."  Opinion  in  the  case  of  the  "Fif- 
teen per  cent  contracts"  (15  Opina..  235).  And  similarly  held  by  the  same  authority 
in  a  later  opinion,  in  16  Opins.,  277,  that  while  the  United  States  may  avail  itself  of 
an  assignment  to  declare  the  contract  annulled,  it  is  not  required  to  do  so,  but,  if 
deemed  to  be  for  its  interests,  may  recognize  the  assignee."  But  it  is  clear  that  an 
officer  of  the  Army  could  not  properly  assume  to  treat  an  assignment  of  a  contract 
(or  interest  therein)  as  valid  without  the  authority  and  direction  of  the  Secretary  of 
War.  That  foi  ft  mail  contractor  to  contract  with  another  person  to  transport  the 
mail  for  him,  and  as  his  servant  or  employee,  was  not  an  assignment  of  his  contract 
with  the  United  States,  was  held  in  the  recent  case  of  Frye  v.  Burdick,  67  Maine,  408. 


THE  MILITAKY  LAWS  OF  THE  UNITED  STATES.      415 

1181.  No  member  of  or  Delegate  to  Congress  shall  di-  Member.  .? 
rectly  or  indirectly,  himself,  or  by  any  other  person  in  trust  uTS^*tS 
for  him,  or  for  his  use  or  benefit,  or  on  his  account,  under- 
take,  execute,  hold,  or  enjoy,  in  whole  or  in  part,  any  con- 
tract  or  agreement  made  or  entered  into  in  behalf  of  the 
United  States,  by  any  officer  or  person  authorized  to  make 
contracts  on  behalf  of  the  United  States.  Every  person 
who  violates  this  section  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  fined  three  thousand  dollars.  AH 
contracts  or  agreements  made  in  violation  of  this  section 
shall  be  void;  and  whenever  any  sum  of  money  is  advanced 
on  the  part  of  the  United  States,  in  consideration  of  any 
such  contract  or  agreement,  it  shall  be  forthwith  repaid; 
and  in  ease  of  refusal  or  delay  to  repay  the  same,  when 
demanded,  by  the  proper  officer  of  the  Department  under 
whose  authority  such  contract  or  agreement  shall  have 
been  made  or  entered  into,  every  person  so  refusing  or 


theeoatraet' 

by  a  writtea  agree- 
i  powered  to  reeeire 

from  the  raited  States,  ia  I'Msiiti  iliomof  which  he  nad«rto»k  to 
traded  for.  Add  that  each  agreemeat  was  a 


i  ••llaii  i  ad  eeanlete 
power  eovpled  with  aa 
oeruoa  2737,  Berised  St 


to  a  third 


delirerKft  firoai  the  latter,  AeU  that  the  coa- 

mpar.CL) 

of  iBTaBdatiag  a  contract,  aeed  aoi  he 
erwritteaue)    It  maty  he  erideaeed  by  the 


acOedtodoPO.    (ICOpm. Att.Ge^.278;  15 ibieL, 2X.) 
rhTad»tiagtia«  bctweeoTtbe  loiiffaoMat  of  a  Goren 


••Bf  r  far  aaini  •  i  sail  n  I  The  fenaer  u  Told 
tteaetof  Jaly  17,  MC  (see.  3737,  JL  S.).  aad  p  iiirn  BO  title,  legal  or  eamtable:  the 
latterpagaM^etotteaMa^ds^aathoaghftweretbesaleofaehatteL  MeCord 
r.U.S^9CCIs.K^159;IdnrreBce*.r.S^8ibid^29Z.  Theaaleof  a  swart,  tmmltru 


bj  •isalmUi  !•  •  Ihinl  party  vorka  a 

Ibytbe^ 


ritieaahoTe  cited.  IS  Opm.  Att.Gea^2£;  WiiwL.277,  Fra»r«  r.  U.  S-, 

%:> 


|]  C    ''/J    ?. 

»  Wheekr  v.  U.  &.  &  C.  Chv  1L,  5M. 
•nawM  •.  U.  &,  U  ihBL,  Oft. 


211°i  directly  or  indirectly  makes  or  enters  into  any  contract, 
vei927  2497'c'69  bargain,  or  agreement  in  writing  or  otherwise,  other  than 


416  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

delaying,  together  with  his  surety  or  sureties,  shall  be  forth- 
with prosecuted  at  law  for  the  recovery  of  any  such  sum 
of  money  so  advanced.1 

what  interest     1182.  Nothing  contained  in  the  preceding  section  shall 
Apr.  21,'igos,  c  extend,  or  be  construed  to  extend,  to  any  contract  or  agree- 

48,8  2,  v.2,  p.  484; 

Feb.27,i877,v.i9,  ment,  made  or  entered  into,  or  accepted,  by  any  incorpo- 
P'seci374o,  R.  s.  rated  company,  where  such  contract  or  agreement  is  made 
for  the  general  benefit  of  such  incorporation  or  company; 
nor  to  the  purchase  or  sale  of  bills  of  exchange  or  other 
property  by  any  member  of  or  delegate  to  Congress,  where 
the  same  are  ready  for  delivery,  and  payment  therefor  is 
made,  at  the  time  of  making  or  entering  into  the  contract 
or  agreement. 

stipuiationthat  1183.  In  every  such  contract  or  agreement  to  be  made  or 
Congress  has  an  entered  into,  or  accepted  by  or  on  behalf  of  the  United 
m Apr8 21, 1808,  c.  States,  there  shall  be  inserted  an  express  condition  that  no 
Feb. 27Ti877,'c.69,:  member  of  [or  delegate  to]  Congress  shall  be  admitted  to 
v'secP3749i',B.s.  any  share  or  part  of  such  contract  or  agreement,  or  to  any 

benefit  to  arise  thereupon.1 
The  same  1184.  Every  officer  who,  on  behalf  of  the  United  States, 

21, 1 

'.  2,  p.  48 
1877,c.f 
249. 

sec.  3742,  B.S.  such  as  are  hereinbefore  excepted,  with  any  member  of  or 
delegate  to  Congress,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  fined  three  thousand  dollars.1 

contracts  to  be     1185.  All  contracts  to  be  made,  by  virtue  of  any  law,  and 

filed   with   audi-  '  .  * 

tors.  requiring  the  advance  of  money,  or  111  any  manner  connected 

is,  ".  k  P.  210.' 8' with  the  settlement  of  public  accounts,  shall  be  deposited 

V*'j'    Q7J.'-l    H    Q 

promptly  in  the  offices  of  the  Auditors  of  the  Treasury, 
according  to  the  nature  of  the  contracts:  Provided,  That 
this  section  shall  not  apply  to  the  existing  laws  in  regard 
to  the  contingent  funds  of  Congress.2  Act  of  July  31, 1894 
(28  Stat.  L.j  210}. 

1  Under  sections  3739-3742,  Revised  Statutes,  it  is  illegal  for  an  officer  of  the  United 
States  to  enter  into  a  contract  or  make  a  purchase  of  a  firm  or   association  (not 
incorporated)  of  which  a  Member  of  or  Delegate  to  Congress  is  a  member  or  in  which 
one  is  pecuniarily  interested,  (a)     (Dig.  Opin.  J.  A.  Gen.,  284,  par.  16.) 

Paragraph  589  ot  the  Army  Regulations  of  1895  prohibits  purchases  by  officers  of 
the  Army  "  from  any  other  person  in  the  military  service."  Held  that  this  prohibition 
did  not  embrace  civilians  employed  in  the  public  service  under  the  War  Department, 
or  in  connection  with  the  military  administration,  and  therefore  did  not  preclude  the 
making  of  a  contract  by  an  ordnance  officer,  as  representing  the  United  States,  with 
a  civil  employee  at  an  arsenal,  for  the  use  of  an  invention  patented  by  the  latter,  (b) 
(Ibid.,  par.  17  ) 

The  form  of  a  proposed  contract  contained  the  stipulation  that  "  no  person  belong- 
ing to  or  employed  in  the  military  service  of  the  United  States  is  or  shall  be  admitted 
to  any  share  or  part  of  this  contract."  The  description  "person  employed  in"  is 
understood  to  mean  all  such  clerks,  mechanics,  laborers,  or  other  civilians  as  are 
legally  employed  by  the  military  authorities  in  or  in  connection  with  military  works, 
operations,  or  other  authorized  transactions.  So  where  a  lowest  bidder  was  a  civil- 
ian laborer  at  the  Springfield  Armory,  advised  that  the  contract  be  made  with  the 
next  lowest  bidder,  who  was  under  no  such  iucapacity.  (Ibid.,  296,  par.  52.) 

2  All  formal  written  contracts  connected  with  the  settlement  of  public  accounts 

a  That  section  3739,  Revised  Statutes,  does  not  affect  contracts  made  with  persons 
who  have  been  simply  elected  Members  of  or  Delegates  to  Congress,  but  havs  not 
actually  become  such  by  being  sworn  in — see  opinion  of  the  Attorney -General  of 
May  19, 1877  (15  Opins.  Att.  Gen.),  citing  16  ibid.,  406. 

6 See  U.  S.  v.  Burns,  12  Wallace,  251, 252 ;  10  Opins.  Att.  Gen.,  2 ;  20  ibid.,  329. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      417 

1186.  It  shall  not  be  lawful  for  any  officer  or  person  in  ,.  inspection  of 

fuel  in   District 

the  civil,  military,  or  naval  service  of  the  United  States  in  °f  Columbia. 
the  District  of  Columbia  to  purchase  anthracite  or  bitumi- 1,  v.  ie,  p.  229.' 
nous  coal  or  wood  for  the  public  service  except  on  condition 
that  the  same  shall,  before  delivery,  be  inspected  and 
weighed  or  measured  by  some  competent  person  to  be    Appointment 
appointed  by  the  head  of  the  Department  or  chief  of  the  etc!"8 
branch  of  the  service  for  which  the  purchase  is  made  from  6,  ^a28,2P .^os'. 8' 
among  the  persons   authorized  to  be  employed  in  such    l*ec'3711»B-8' 
Department  or  branch  of  the  service:  Provided,  That  the 
weigher  or  measurer  of  the  Navy  Department  may  be 
appointed  outside  of  said    Department,  and  that   such 
weigher  and  measurer  shall  give  bond  and  be  paid  as  here- 
tofore provided  by  law.    The  person  appointed  under  this 
section  shall  ascertain  that  each  ton  of  coal  weighed  by 
him  shall  consist  of  two  thousand  two  hundred  and  forty 
pounds,  and  that  each  cord  of  wood  to  be  so  measured  shall 
be  of  the  standard  measure  of  one  hundred  and  twenty- 
eight  cubic  feet.     Each  load  or  parcel  of  wood  or  coal 
weighed  and  measured  by  him  shall  be  accompanied  by  his 
certificate  of  the  number  of  tons  or  pounds  of  coal  and  the 
number  of  cords  or  parts  of  cords  of  wood  in  each  load  or 
parcel.1     Act  of  March  2,  1895  (28  Stat.  L.,  808). 

1187.  The  proper    accounting  officer  of  the   Treasury    Appointments 
shall  be  furnished  with  a  copy  of  the  appointment  of  each  to  decertified  to 

. .     ,     ,  ,        , .  accounting     offi- 

inspector.  weigher,  and  measurer  appointed  under  the  pre-  cer. 

,.  '     .  «         «     -r-,7  Sec.2,tWd. 

ceding  section.     Sec.  2,  ibid.  sec.37i2,B.s. 

should  be  placed,  and  should  remain,  on  file  in  the  offices  designated  by  law  as  their 
proper  depositories.  (3  Dig.  Compt.  Dec.,  112.) 

Under  paragraph  554  of  the  Army  Regulations  of  1895  formal  written  contracts 
are  to  be  executed  in  quiutuplicate,  one  of  which  is  to  be  filed,  in  accordance  with 
section  3743  of  the  Revised  Statutes,  with  the  proper  Comptroller  of  the  Treasury, 
because  they  are  connected  with  the  settlement  of  public  accounts.  (Ibid.,  p.  111.) 

Under  section  3743  of  the  Revised  Statutes  all  contracts  iu  any  manner  connected 
with  the  settlement  of  public  accounts  by  the  Second,  Third,  and  Fourth  Auditors 
and  the  Second  Comptroller  are  to  be  deposited  or  filed  in  the  Second  Comptroller's 
Office  within  ninety  days  after  their  respective  dates.  This  statutory  require- 
ment includes  not  only  all  formal  written  contracts  or  specialties  in  any  manner  con- 
nected with  the  settlement  of  accounts,  but  also  all  properly  authorized  extensions 
or  other  modifications  of  such  contracts,  every  modification  of  a  contract  being  in 
the  nature  of  a  new  contract  and  connected  with  the  settlement  of  accounts.  (Ibid., 
p.  112.) 

Only  formal  written  contracts  are  required  under  section  3743  of  the  Revised 
Statutes  to  be  filed  in  the  office  of  the  Second  Comptroller.  Informal  contracts  and 
the  papers  pertaining  thereto  should  be  filed  with  the  accounts  or  vouchers  to  which 
they  relate,  in  order  to  facilitate  the  examination  and  revision  of  accounts  and 
vouchers.  (Ibid.,  109.) 

A  separate  notification  is  required  in  each  case  of  extension  of  a  contract,  so  that 
it  can  be  filed,  with  the  contract  to  which  it  pertains,  in  the  office  of  the  Second 
Comptroller.  Otherwise  notifications  of  extensions  of  contracts  will  fail  of  the 

Formal  written  contracts  made  and  filed  in  the  proper  office  in  pursuance  of 
law  must  be  regarded  as  necessary  in  the  settlement  of  public  accounts  or  claims, 
and  therefore  can  not  properly  be  returned  either  for  cancellation-  or  amendment. 
(Ibid.) 

The  Second  Comptroller  is  not  authorized  to  deliver  to  either  of  the  parties  to  a 
contract,  for  any  purpose  whatever,  any  contract  connected  with  the  settlement  of 
public  accounts  which  has  been  properly  placed  in  his  custody  under  the  provisions 
of  section  3743  of  the  Revised  Statutes.  (Ibid.) 

'See  also,  for  further  statutory  provisions  on  this  subject,  the  Act  of  June  14, 
1878  (20  Stat.  L.,  131).  and  sections  12,  13,  14,  and  15  of  the  act  of  March  2,  1895 
(28  Stat.  L.,  813). 

1919 27 


418 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


NO   payments     1188.  It  shall  not  be  lawful  for  any  accounting  officer  to 

i0ithoStelcertifi-pass  or  allow  to  the  credit  of  any  disbursing  officer  in  the 

caz&id.  District  of  Columbia  any  money  paid  by  him  for  purchase 

Sec.37i3,R.s.of  anthracite  or  bituminous  coal  or  for  wood,  unless  the 

voucher  therefor  is  accompanied  by  a  certificate  of  the 

proper  inspector,  weigher,  and  measurer  that  the  quantity 

paid  for  has  been  determined  by  such  officer.     IMd. 


THE   RETURNS   OFFICE. 


Par.  Par. 

1189.  The    returns     office;     con  1191.  Penalty     for     omission     to 

tracts  to  be  in  writing.  make  return. 

1190.  Oath  to  return,  etc.  1192.  Instructions  to  be  furnished. 

jThe  returns     H89.  It  shall  be  the  duty  of  the  Secretary  of  War,  of  the 

omce;    contracts 

toj?neI2Wi882I1c  Secretary  °^  ^ne  Navy,  and  of  the  Secretary  of  the  Interior, 
s.^  93,  i,  v.  12,'  p.  to  cause  and  require  every  contract  made  by  them  severally 
sec.  3744,  B.  s.  on  behalf  of  the  Government,  or  by  their  officers  under 
them  appointed  to  make  such  contracts,  to  be  reduced  to 
writing,  and  signed  by  the  contracting  parties  with  their 
names  at  the  end  thereof;  a  copy  of  which  shall  be  filed  by 
the  officer  making  and  signing  the  contract  in  the  Returns 
Office  of  the  Department  of  the  Interior,  as  soon  after  the 
contract  is  made  as  possible,  and  within  thirty  days, 
together  with  all  bids,  offers,  and  proposals  to  him  made  by 
persons  to  obtain  the  same,  and  with  a  copy  of  any  adver- 
tisement he  may  have  published  inviting  bids,  offers,  or 
proposals  for  the  same.  All  the  copies  and  papers  in  rela- 
tion to  each  contract  shall  be  attached  together  by  a  ribbon 
and  seal,  and  marked  by  numbers  in  regular  order,  accord- 
ing to  the  number  of  papers  composing  the  whole  return.1 

1  It  may  be  considered  as  settled  that  so  much  of  section  3744  as  provides  that  all 
contracts  shall  "be  reduced  to  writing  and  signed  by  the  contracting  parties  with 
their  names  at  the  end  thereof  ;T  is  mandatory,  and  contracts  which  do  not  comply 
with  its  requirements  are  void.  In  looking  at  the  scope  and  purpose  of  this  law 
and  at  the  words  in  which  it  is  couched,  I  can  not  doubt  of  the  intention  of  Congress 
in  its  enactment.  To  my  mind  it  is  clear  that  it  was  designed  to  require  every 
executory  contract,  at  least,  to  be  put  in  writing  so  that  its  terms  might  not  be  mis- 
taken and  th  at  the  character  and  extent  of  the  outstanding  engagements  of  the  United 
States  might  at  all  times  be  known  to  the  Executive  and  Legislative  Departments,  or 
be  capableof  being  ascertained  in  a  reasonable  time  and  with  appropriate  exactitude. 
Hendersons  U  S..  4C.  Cls.  R  ,  75,83.  There  is  no  class  of  cases  in  which  a  statute  for 
preventing  frauds  and  perjuries  is  more  needed  than  in  this.  And  we  think  that 
the  statute  in  question  was  intended  to  operate  as  such.  It  makes  it  unlawful  for 
contracting  officers  to  make  contracts  in  any  other  way  than  by  writing  signed  by 
the  parties  This  is  equivalent  to  prohibiting  any  other  mode  of  making  contracts. 
Clark  v.  U.  S.,  95  U.  S.,  539,  542;  South  Boston  Iron  Co..  18  C.  Cls.  R.,  165,  176,  The 
provisions  of  this  section  apply  to  contracts  made  in  emergencies.  Cobb  et  al.  v.  U. 
S.,  18  C.  Cls.  R.,  514,  532;  Clark  v.  U.  S.,  95  U.  S-,  539  Oners  and  acceptances  by  letter 
are  preliminary  memoranda  only,  and  do  not  constitute  a  valid  contract  within  the 
meaning  of  the  statute  South  Boston  Iron  Co  v.  TJ  S..  118  D.  S.,  37,  42.  Where, 
however,  a  parol  contract  has  been  wholly  or  partly  executed  on  one  side,  the 
party  performing  will  be  entitled  to  recover  the  fair  value  of  his  property  or  serv- 
ices as  upon  an  implied  contract  for  a  quantum  meruit.  Clark  v.  U.  S.,  95  U.  S.,  539. 
See  also  Warren  &  Goss  v.  U.  S  ,  23  C.  Cls.  R.,  77;  South  Boston  Iron  Co.  v.  U.  S.,  18 
ibid.,  165,  and  118  TJ.  S.,  37 ;  Clark  v.  U.  S.,  95  U.  S.,  543 ;  The  International  Contracting 
Co.  v.  Lamont.  2  Ct.  App.  D.  C.,  532.  See,  also,  Lindsley  v.  U.  S.,  4  C.  Cls.  R.,  359; 
Burchiel  v.  TJ.  S.,  4  C.  Cls.  R.,  549;  Bernheimerv.  U.  S.,  5  C.  Cls.  R.,  65. 

The  verification  and  return  provided  for  in  these  sections  have  been  held  to  be 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  419 

1190.  It  shall  be  the  further  duty  of  the  officer,  before  oath  to  return, 
making  his  return,  according  to  the  preceding  section,  to  sec.2,i&td. 
affix  to  the  same  his  affidavit  in  the  following  form,  sworn  Sec-3746»B-s« 
to  before  some  magistrate  having  authority  to  administer 

oaths:  "I  do  solemnly  swear  (or  affirm)  that  the  copy  of 
contract  hereto  annexed  is  an  exact  copy  of  a  contract 

made  by  me  personally  with ;  that  I  made  the  same 

fairly  without  any  benefit  or  advantage  to  myself,  or  allow- 
ing any  such  benefit  or  advantage  corruptly  to  the  said 
,  or  any  other  person ;  and  that  the  papers  accom- 
panying include  all  those  relating  to  the  said  contract,  as 
required  by  the  statute  in  such  case  made  and  provided." 

1191.  Every  officer  who  makes  any  contract,  and  fails  or    penalty  for 
neglects  to  make  return  of  the  same,  according  to  the  pro-  makeVeturas.*0 
visions  of  the  two  preceding  sections,  unless  from  unavoid-  lee.' aVtef B.  s. 
able  accident  or  causes  not  within  his  control,  shall  be 

deemed  guilty  of  a  misdemeanor,  and  shall  be  fined  not  less 
than  one  hundred  dollars  nor  more  than  five  hundred,  and 
imprisoned  not  more  than  six  months. 

1192.  It  shall  be  the  duty  of  the  Secretary  of  War,  of   instructions  to 
the  Secretary  of  the  Navy,  and  of  the  Secretary  of  the   sec.T^. 
Interior  to  furnish  every  officer  appointed  by  them  with 
authority  to  make  contracts  on  behalf  of  the  Government 

with  a  printed  letter  of  instructions,  setting  forth  the  duties 
of  such  officer,  under  the  two  preceding  sections,  and  also 
to  furnish  therewith  forms,  printed  in  blank,  of  contracts 
to  be  made,  and  the  affidavit  of  returns  required  to  be 
affixed  thereto,  so  that  all  the  instruments  may  be  as  nearly 
uniform  as  possible. 

mandatory  only  upon  the  officer  who  made  the  contract.  A  contract  reduced  to 
writing  and  executed  with  all  the  formality  which  the  law  requires,  will  not  be 
invalidated  by  a  failure  of  the  officer  to  make  a  proper  return  of  the  same.  That  is 
made  his  exclusive  duty  by  the  law.  and  he  alone  is  to  be  punished  for  it  by  the 
stringent  and  severe  penalties  prescribed  by  the  act.  Henderson  v.  U.  S.,  4  C.  Cls. 
K.,  75, 81 ;  Clark  v.  U.  S.,  95  U.  S.,  539 ;  Power  v.  U.  S.,  18  0.  Cls.  K.,  263. 

A  mere  understanding  or  oral  agreement  can  not  constitute  a  contract  in  the  War 
Department.  Were  it  not  indeed  for  the  provisions  of  section  3744,  Revised  Statutes, 
the  acceptance  of  a  bid  would,  under  the  general  law  of  contracts,  bind  the  United 
States.  But  this  section  has  been  construed  bv  the  Supreme  Court  as  being  in  the 
nature  of  a  statute  of  frauds  and  mandatory  in  its  requirements,  and  therefore  mak- 
ing it  essential  that  a  contract,  to  be  legal  and  obligatory,  shall  be  in  writing  and 
signed  by  the  parties,  (a)  The  mere  proposal  of  a  bidder,  accepted  on  the  part  of  the 
Government,  does  not  therefore  operate  as  a  contract  but  is  simply  a  proceeding  pre- 
liminary to  contract ;  nor  does  such  an  acceptance  bind  the  United  States  to  enter 
into  a  contract.  (Dig.  Opin.  J.  A.  Gen.,  295,  par.  48.) 

It  is  proper  to  remark  that  in  the  event  of  a  suit  being  instituted  against  a  prin- 
cipal or  surety  on  a  contract  of  the  United  States,  the  copy  of  the  contract  filed  in 
the  lleturns  Office  would  have  no  evidential  value,  and  a  copy  of  the  original  filed 
in  the  office  of  the  Comptroller  of  the  Treasury  under  the  provisions  of  section  3743, 
Kevised  Statutes  (paragraph  1185,  supra),  would  have  to  be  produced  subject  to  the 
authentication  required  in  section  886  of  the  Revised  Statutes.  See  paragraphs 
391-394,  ante,  for  other  statutory  provisions  respecting  the  returns  office. 

«  Clark  v.  U.  S.,  95  U.  S.,  539 ;  South  Boston  Iron  Co.  v.  U.  S.,  118  U.  S.,  37. 


420 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 


THE  EIGHT-HOUR  LAW. 


Par. 

1193.  Eight  hours  to  be  a  day's 

work. 

1194.  The    same;   contractors; 

emergencies. 

1195.  Penalty    for    violation     by 

officer  or  contractor. 


Par. 

1196.  Present    contracts    not    af- 

fected. 

1197.  Penal  bond   to   include  se- 

curity for  labor  and  mate- 
rials. 

1198.  Security  for  costs. 


Eight  hours  to     1193.  Eight  hours  shall  constitute  a  day's  work  for  all 
esec.3738,WR.rs.  laborers,  workmen,  and  mechanics  who  may  be  employed 

by  or  on  behalf  of  the  United  States.1 
Thesame;  con-     H94.  That  the  service  and  employment  of  all  laborers 

tractors;  emer- 
gencies^ ^^  ^  and  mechanics  who  are  now  or  may  hereafter  be  employed 

27,  p.  340.'  by  the  Government  of  the  United  States,  by  the  District 

of  Columbia,  or  by  any  contractor  or  subcontractor  upon 
any  of  the  public  works  of  the  United  States  or  of  the  said 
District  of  Columbia,  is  hereby  limited  and  restricted  to 
eight  hours  in  anyone  calendar  day,  and  it  shall  be  unlaw- 
ful for  any  officer  of  the  United  States  Government  or  of 
the  District  of  Columbia  or  any  such  contractor  or  sub- 
contractor whose  duty  it  shall  be  to  employ,  direct,  or  con- 
trol the  services  of  such  laborers  or  mechanics  to  require 
or  permit  any  such  laborer  or  mechanic  to  work  more  Mian 
eight  hours  in  any  calendar  day  except  in  case  of  extraor- 
dinary emergency.2  Act  of  August  1,  1892  (27  Stat.  L., 
340). 
Penalty  for  1195.  That  any  officer  or  agent  of  the  Government  of  the 

llror contractor!  United  States  or  of  the  District  of  Columbia,  or  any  con- 
tractor or  subcontractor  whose  duty  it  shall  be  to  employ, 
direct,  or  control  any  laborer 3  or  mechanic  employed  upon 
any  of  the  public  works  of  the  United  States  or  of  the 
District  of  Columbia  who  shall  intentionally  violate  any 
provision  of  this  act,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  for  each  and  every  such  offense  shall  upon 

1  The  eight-hour  law  is  in  the  nature  of  a  direction  from  a  principal  to  his  agent; 
in  which  third  party  has  no  interest.    It  does  not  make  a  contract,  nor  prevent 
officers  from  contracting,  by  express  agreement,  for  day's  labor  of  more  or  less  than 
eight  hours.     (Martin  v.  D.  S.,  12  C.  Cls.  R.,  87  and  94  U.  S.,  400.) 

The  eight-hour  law  does  not  establish  an  inflexible  rule  for  the  payment  of  wages 
Its  intent  is  not  to  increase  wages,  but  to  elevate  the  condition  of  laboring  men  by 
diminishing  their  hours  of  labor.  (Averill  v.  U.  S.,  14  C.  Cls.  R..  200.) 

2  The  term  'extraordinary  emergency,"  employed  in  the  first  section  of  the  act  of 
August  1, 1892,  can  not  properly  be  construed  in  advance  as  referring  or  applicable  to 
any  particular  class  of  cases.     The  question  whether  there  is  or  was  such  emergency 
should  be  left  to  be  determined  by  the  facts  of  each  special  instance  "".a  it  arises.     A 
case  in  which  it  appeared  that  a  compliance  with  the  statute  was  not  possible  might 
well  be  held  to  be  one  of  "extraordinary  emergency.       (Dig.  Opin.  J.  A.  Gen..  382, 
par.  6.) 

3  Held,  that  the  term  "laborer,  'as  used  in  the  act  of  1892,  was  apparently  intended 
in  a  comprehensive  sense,  and  that  to  declare  certain  classes  of  employment  as 
"  peculiar, "  and  therefore  excepted  from  the  operation  of  the  act,  would  be  a  restric- 
tion not  warranted  by  the  language  of  the  statute.    Thus  a  proposed  regulation, 
excepting  "watchmen,  messengers,  teamsters,  engineers,  firemen,  seamen,"  and  some 
others,  as  not  included  in  the  description  "laborers  and  mechanics,"  not  recom 
mended  to  be  adopted.     (Dig.  Opin.  J.  A.  Gen.,  380,  par.  4.) 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES.  421 

conviction  be  punished  by  a  fine  not  to  exceed  one  thousand 
dollars  or  by  imprisonment  for  not  more  than  six  months, 
or  by  both  such  fine  and  imprisonment,  in  the  discretion  of 
the  court  having  jurisdiction  thereof.1  Sec.  2,  ibid. 

1196.  The  provisions  of  this  act  shall  not  be  so  construed    Present  con- 
as  to  in  any  manner  apply  to  or  affect  contractors  or  sub-  fected. 
contractors,  or  to  limit  the  hours  of  daily  service  of  labor- 
ers or  mechanics  engaged  upon  the  public  works  of  the 
United  States  or  of  the  District  of  Columbia  for  which 
contracts  have  been  entered  into  prior  to  the  passage  of 
this  act.     Sec.  3,  ibid. 

'The  original  statute  on  this  subject— the  act  of  June  25,  1868,  incorporated  in 
section  3738,  Revised  Statutes — merely  provided  that  eight  hours  should  "constitute 
a  day's  work  "  for  laborers  etc.,  employed  by  the  United  States.  It  has  been  held 
by  the  Supreme  Court  (U.  S.  v.  Martin,  94  U  -  S.,  400),  (a)  that  this  enactment  was 
merely  "a  direction  by  the  Government  to  its  agents,"  not  "a  contract  between  the 
Government  and  its  laborers,  that  eight  hours  shall  constitute  a  day's  work,"  and 
that  it  did  not  "prevent  the  Government  from  making  agreements  with  them  by 
which  their  labor  may  be  more  (or  less)  than  eight  hours  a  day."  The  act  thus  failed 
of  its  apparent  object.  To  cure  this  defect  was  passed  the  act  of  August  1,  1892, 
chapter  352.  Held,  therefore,  that  the  term  "public  works  of  the  United  States," 
used  in  the  first  section  of  the  later  act,  should  not  be  narrowly  construed.  (Dig. 
Opin.  J.  A.  Gen.,  380,  par.  1.) 

Thus  held  that  the  construction  of  levees  on  the  banks  of  the  Mississippi  River, 
in  accordance  with  the  plans  of  the  Mississippi  River  Commission,  was  a  public 
work  of  the  United  States  in  the  sense  of  the  act  of  August  1,  1892.  chapter  352, 
section  1,  although  the  United  States  did  not  own  the  land.  A  proprietorship  in  or 
jurisdiction  over  the  thing  constructed  is  not  necessary.  The  United  States  expends 

~  rivers  and  harbors,  but 
tion  to  or  over  the 
the  title  or  jurisdiction,  but 

who  is  doing  the'work.  The  construction  of  these  levees  is  a  particular  work  appro- 
priated for  by  Congress  and  to  be  contracted  for  by  the  United  States.  It  is  therefore 
one  of  the  public  works  of  the  United  States,  and  subject  to  the  provisions  of  this 
statute.(fc)  (Ibid.,  par.  2.) 

Held,  that  it  was  not  essential  that  the  requirement  of  the  act  of  August  1, 1892,  be 
embodied  in  a  contract,  the  law  itself  being  self-acting.  The  responsibili  ty  rests  on 
contractors  to  comply  with  it,  irrespective  of  the  terms  and  conditions  of  their  con- 
tracts. The  officers  who  enter  into  contracts  on  behalf  of  the  United  States  are  not 
charged  with  the  duty  of  enforcing  the  law  with  reference  to  those  with  whom  they 
contract,  the  latter  being  directly  responsible  in  the  matter.  Any  construction  by 
the  AVar  Department  of  the  requirements  of  the  act  would,  if  erroneous  and  not 
sustained  by  the  courts,  be  no  protection  to  contractors.  (Ibid.,  p.  381,  par.  3.) 

Inquiry  having  been  made  of  the  War  Department  by  certain  contractors  whether 
the  men  employed  on  dredges,  scows,  and  tugs,  on  Lake  Erie,  under  contracts  with, 
the  United  States,  were  not  to  be  regarded  as  excepted  from  the  application  of  the 
act  of  1892,  held  that  it  was  not  the  duty  or  province  of  this  Department  to  deter- 
mine such  questions,  but  that  the  same  were  for  the  courts  to  decide,  on  trials,  under 
the  second  section  of  the  act,  of  persons  charged  with,  violations  of  its  provisions. 
Neither  this  or  other  Department  of  the  Government  can  lay  down  rules,  or  make 
constructions  of  the  law,  for  contractors,  which  would  effectually  protect  them  were 
they  brought  to  trial. (c)  (Ibid.,  p.  382,  par.  5.) 

No  provision  is  contained  in  the  act  of  1892  for  the  suspension  of  its  operation, 
and  the  Secretary  of  War  has  no  power  to  suspend  it  as  to  certain  work  or  places  of 
work  on  the  theory  that  an  "emergency"  exists  as  to  the  same.  Nor  can  he  lay 
down  in  advance  any  general  rule  as  to  what  would  be  such  an  emergency  as  would 
relieve  an  officer  or  contractor  from  liability,  or  give  him  an  immunity  from  prose- 
cution. The  question  of  the  existence  of  an  emergency  is  to  be  determined,  in  the 
first  instance,  by  the  person  carrying  on,  or  in  charge  of  the  work;  in  the  second, 
by  the  court,  if  the  case  comes  before  one.  It  may  be  said  generally  that  when  the 
emergency  can  be  foreseen  it  is  not  extraordinary;  that  increased  expense  and  incon- 
venience can  not  constitute  an  emergency  which  can  not  be  foreseen  and  guarded 
against.  (Ibid.,  par.  7.) 

a  And  see  19  Opin.  Att.  Gen.,  685. 

&In  the  recent  case  of  U.  S.  v.  Jefferson,  60  Fed.  Rep.,  736,  it  is  held  that  seamen 
employed  on  a  steam  snag  boat  belonging  to  the  War  Department,  engaged  in  remov- 
ing obstructions  to  navigation,  were  employed  upon  a  "public  work  of  the  United 
States,"  and  that  the  master  of  the  boat,  in  exacting  from  them  more  than  eight 
hours  labor  per  diem,  was  indictable  under  the  act  of  August  1, 1892. 

cln  a  communication  to  the  Secretary  of  War  of  August  29, 1892,  the  Attorney- 
General,  whose  opinion  had  been  asked  with  regard  to  the  application  in  general  of 
the  act  to  the  " construction  of  levees  on  the  Mississippi  River,"  declines  to  give 
an  official  opinion  with  a  view  to  the  guidance  of  persons  who  may  propose  to  enter 
into  contract  relations  with  the  United  States,  in  the  absence  of  a  special  case  requir- 
ing the  action  of  the  Secretary.  (See  20  Opin.  Att.  Gen.,  459.) 


jurisdiction  over  tne  tning  constructed  is  not  necessary,  me  u  nite 
annually  more  than  twenty  millions  for  the  improvement  of  rivers  i 
the  greater  part  of  this  is  done  without  acquiring  title  or  jurisdicti 
premises.  Tlie  question  under  the  act  is  not  in  whom  is  the  title  or 


422  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


BONDS  TO  SECURE  PAYMENT  FOR  LABOR  AND  MATERIALS. 


securit0  H97.  That  hereafter  any  person  or  persons  entering  into 
andma-  a  formal  contract  with  the  United  States  for  the  construc- 
Aug'.  is,  1894,  tioii  of  any  public  building,  or  the  prosecution  and  com- 
pletion of  any  public  work  or  for  repairs  upon  any  public 
building  or  public  work,  shall  be  required  before  commenc- 
ing such  work  to  execute  the  usual  penal  bond,  with  good 
and  sufficient  sureties,  with  the  additional  obligations  that 
such  contractor  or  contractors  shall  promptly  make  pay- 
ments to  all  persons  supplying  him  or  them  labor  and 
materials  in  the  prosecution  of  the  work  provided  for  in 
such  contract;  and  any  person  or  persons  making  applica- 
tion therefor,  and  furnishing  affidavit  to  the  Department 
under  the  direction  of  which  said  work  is  being,  or  has 
been,  prosecuted,  that  labor  or  materials  for  the  prosecu- 
tion of  such  work  has  been  supplied  by  him  or  them,  and 
payment  for  which  has  not  been  made,  shall  be  furnished 
with  a  certified  copy  of  said  contract  and  bond,  upon  which 
said  person  or  persons  supplying  such  labor  and  materials 
nave  a  rignt  of  action,  and  shall  be  authorized  to 
f  ur'  bring  suit  in  the  name  of  the  United  States  for  his  or  their 
use  and  benefit  against  said  contractor  and  sureties  and  to 
prosecute  the  same  to  final  judgment  and  execution:  Pro- 
vided, That  such  action  and  its  prosecutions  shall  involve 
the  United  States  in  no  expense.1  Act  of  August  13,  1894 
(28  Stat.  L.,  278}. 

co!te8curity  for     1198-  Provided  that  in  such  case  the  court  in  which  such 
sec.2,tMd.      action  is  brought  is  authorized  to  require  proper  security 
for  costs  in  case  judgment  is  for  the  defendant.     Sec.  2, 
ibid. 

1  When  a  contract  is  entered  into  for  the  construction  of  any  public  building,  ^t 
the  prosecution  and  completion  of  any  public  work,  or  for  repairs  on  any  public 
building  or  public  work,  the  contractor  will  be  required,  before  entering  upon  per- 
formance of  the  same,  to  include  in  the  bond  given  for  the  faithful  performance  of 
the  contract  the  further  obligation  that  he  will  promptly  make  payments  to  all  per- 
sons who  supply  him  with  labor  and  materials  for  the  prosecution  of  the  work  pro- 
vided for  in  such  contract.  A  certified  copy  of  this  contract  and  bond  will  be 
furnished  to  any  person  who  has  supplied  such  laborer  materials,  upon  his  appli- 
cation to  the  War  Department,  accompanied  by  an  affidavit  chat  the  labor  or  mate- 
rials  have  been  supplied  by  him  and  have  not  been  paid  for  by  the  contractor 


CHAPTER    XXXII. 


THE    PUBLIC    LANDS— MILITARY    RESERVA- 
TIONS—MILITARY  POSTS. 

THE   PUBLIC   LANDS1 — MILITARY  RESERVATIONS. 


Par. 

1199.  Lands   subject  to  pre-emp- 

tion. 

1200.  Lands  not   subject   to  pre- 

emption. 

1201.  Military  reservations. 

1202.  Right  of  way  for  highways 

over  public  lands. 

1203.  Eight  of  way  for  tramroads, 

canals,  and  reservoirs. 

1204.  Title  to  land  to  be  exam- 

ined by  Attorney-General. 

1205.  Restriction  on  purchases  of 

lands. 

1206.  Assent  of  States  to  purchases 

of  lands. 

1207.  Power  to  obtain  releases. 


Par. 

1208.  Acquisitions    of    lands    for 

public  uses  by  condemna- 
tion. 

1209.  Procedure  in  condemnation. 

1210.  Jurisdiction    over    reserva- 

tions ;  when  exclusive. 

1211.  Sale  of  abandoned  and  use- 

less military  reservations. 

1212.  Lands  on,  opened  to  entry. 

1213.  Appraisement,  etc. 

1214.  Preference  to  homestead  set- 

tlers. 

1215.  Secretary  of  War  may  lease 

public    property  not    re- 
quired for  use ;  exception. 


1199.  All  lauds  belonging  to  the  United  States,  to  which  t 
the  Indian  title  has  been  or  may  hereafter  be  extinguished,  94Jgu"v 
shall  be  subject  to  the  right  of  pre-emption,  under  the  con-  g^ 
ditions,  restrictions,  and  stipulations  provided  by  law. 


Feb.  23,  1875,  c. 

99,  V.  18,  p.  334; 

•  Apr.  21,  1876,  c. 

1  Lands  acquired  by  the  United  States  for  public  uses,  by  purchase  with  the  con- 72,  v.   19,  p.  35. 
sent  of  the  legislatures  of  the  States,  or  acquired  by  an  exercise  of  the  right  of  emi-  Shepley  et  al.  v. 
nent  domain,  are  not  "public  lands,"  that  term  applying  only  to  such  lands  as  are  Cowen  et  al.,  ill 
subject  to  sale  or  other  disposition  under  general  laws.    New'hall  v.  Sanger,  92  U.  S.,  u-  S.,330. 
761;  SOpin.  Att.  Gen.,  578.    Power  over  such  lands  is  vested  in  Congress  by  the     Sec.  2257,  K.S. 
Constitution,  without  limitation,  and  is  the  foundation  upon  which  the  territorial 
governments  rest.    U.  S.  v.  Gratiot,  14  Pet.,  526.    The  power  of  Congress  over  the 
public  land  and  the  effect  of  its  grants  can  not  be  interfered  with  by  State  legisla- 
tion.   Gibson  v.  Chouteau,  13  Wall..  92. 

MILITARY  RESERVATIONS. 


ts  empowering  the  President  to  reserve  public 
s  for  public  uses  is  recognized  by  the 


No  specific  statutory  authority  exists  em 
lands;  but  the  right  to  reserve  such  lan 

courts.  14  Dec.  Int.  Dep.,  426,  607,  628  ;  Wolsey  v.  Chapman,  101  U.  S.,  755,  768  ;  Wol- 
cott  v.  Des  Moines  Co  ,  5  Wall.,  681,  Such  reservation  may  be  effected  by  proclama- 
tion or  by  Executive  .order.  13  Dec.  Int.  Dep.,  426. 

A  military  reservation,  being  simply  territory  of  the  United  States  withdrawn 

423 


424 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Lands  notsub-     1200.  The  following  classes  of  lands,  unless  otherwise 

ect  to  pre-emp-  ° 

ion.  specially  provided  for  by  law,  shall  not  be  subject  to  the 

o6p$.  4,  1841,  c.     ••ii          n  j  •  •  i 

16,  s.  10,  v.  5,  p.  rights  oi  pre-emption,  to  wit  : 


je 

ti 

o6p$.  4,  1841,  c.     • 

,  s.  10,  v.  5,  p.  ri 

.122il.     First.  Lands  included  in  any  reservation  by  any  treaty, 
.f  498  i  law?  or  proclamation  of  the  President,  for  any  purpose.  l 

^iSr'  from  sale,  pre-emption,  (a)  etc.  (7  Opin.  Att,  Gen.,  574,  757;  14ibid..  775),  the  mere  factof 
Turner  t>   Amer-  the  establishing  of  such  a  reservation  can  not  affect  the  power  of  the  State  or  Ter- 
ioan   B  a  t>  t  i  s  t  rjtorial  authorities  (according  as  it  may  bo  located  in  a  State  or  Territory),  to  serve 
Union      5    Me  -  p^v^  or  criminal  process  therein,  or  to  attach  or  levy  upon  personal  property,  except 
Lean  *344  •  U   S  *n  so  ^ar<  °^  course-  as  such  service  may  bo  specially  precluded  or  restricted  by  law 
Rai  Iroad  aa  ^°  mi*itary  persons  in  general,  (b)     Where  indeed  there  has  been  a  cession  of 
Brid  (re    Com-  exclusive  jurisdiction  over  the  land  by  the  State  to  the  United  States,  the  question 
•niriv  6  McLean"  whether  t\lQ  State  authorities  may  still  serve  process  within  the  reservation  on 
- 


Beebe     Hemps    uPon  the  te.rms  of  tbo  cession.     (Dig.  J.  A.  Gen.,  510,  par.  1.) 

7Q  .  Land  which  has  been  set  apart  as  a  portion  of  an  Indian  reservation,  under  a 

Sec  2258  B.  S.  treaty,  can  not  be  occupied  as  a  military  reservation;  nor  can  even  a  military  post 

*  be  maintained  thereon,  in  derogation  of  the  terms  of  the  treaty  or  against  the  con- 

sent of  the  Interior  Department.  (c)    Ibid.,  512,  par.  3.) 

Held  that  the  right  to  the  "  free  and  open  exploration  and  purchase"  of  mineral 

1  Under  this  head  fall  military  and  Indian  reservations,  the  Yellowstone  National 
Park,  and  the  forest  reservations  in  California  set  apart  by  the  President  under  the 
authority  conferred  by  section  24  of  the  act  of  March  3,  1891.  See  the  chapter  enti- 
tled NATIONAL  PARKS. 

a  The  Constitution  (Art.  IV,  sec.  3,  §  2)  has  vested  in  Congress  the  exclusive  power 
"to  dispose  of  and  make  all  needful  rules  and  regulations  respecting  the  territory" 
(held  in  U.  S.  v.  Gratiot  (14  Peters,  537)  to  mean  "lands  ')  "or  other  property 
belonging  to  the  United  States.  '  As  a  consequence  perhaps  of  the  indenniteness 
of  this  grant  (see  7  Opin.  Att.  Gen.,  574)  no  general  enactment  providing  for  the 
setting  apart  of  land  for  military  reservations  has  ever  been  made  by  Congress.  In 
a  few  cases,  indeed,  a  special  authority  to  establish  a  military  reserve  has  been  con- 
ferred upon  the  President  by  statute,  but  the  great  majority  of  the  military  reserva- 
tions heretofore  located  or  now  existing  have  been  made  by  the  President  without 
any  such  specific  authority  whatever.  But  though  no  general  authority  has  been 
directly  given  by  Congress  for  the  reserving  of  lands  for  military  purposes,  an 
authority  for  the  purpose  has  been  deemed  to  exist,  and  this  authority  is  found  in  the 
usage  of  the  Executive  Department  of  the  Government,  as  indirectly  sanctioned  by 
Congress  in  repeated  preemption  acts,  acts  relating  to  the  survey  of  the  public 
domain,  appropriation  acts,  etc.,  in  which  lands  reserved  for  military  purposes  by 
the  President  have  been  in  general  terms  excepted  from  sale,  exempted/rom  eiury, 
etc.,  or  special  provision  has  been  made  for  the  cost  of  improvements  to  be  erected 
upon  the  same.  In  Grisar  v.  McDonald  (6  Wallace,  381)  the  United  States  Supreme 
Court,  by  Field,  J.,  observes  :  '  '  From  an  early  period  in  the  history  of  the  Government 
it  has  been  the  practice  of  the  President  to  order,  from  time  to  time,  as  the  exigencies 
of  the  public  service  required,  parcels  of  land  belonging  to  the  United  States  to  be 
reserved  from  sale  and  set  apart  for  public  uses.  '  Further,  "The  authority  of  the 
President  in  this  respect  is  recognized  in  numerous  acts  of  Congress."  The  court 
then  cites  several  statutes  as  containing  this  recognition,  including  the  preemption 
acts  of  May  29,  1830,  and  September  4,  1841,  and  adds:  "The  action  of  the  President  in 
the  making  the  (military)  reservations  '  '  (the  title  to  which  was  at  issue  in  the  particu- 
lar case)  "  was  indirectly  approved  by  the  legislation  of  Congress  in  appropriating 
moneys  for  the  construction  of  fortifications  and  other  public  works  upon  them. 
And  see  12  Opin.  Att.  Gen.,  381;  14  ibid  ,  182;  17  ibid.  ,253;  Wilcox  v.  Jackson,  13 
Peters,  512;  U.S.fl.  Hare,  4  Sawyer,  653  ;  alsoU.  S.  v.R.  R.  Bridge  Co..  6  McLean,  517. 

It  is,  moreover,  to  be  noted  that  the  provision  of  the  act  of  1841,  referred  to  by  the 
Supremo  Court,  has  been  incorporated  as  ageneral  enactment  in  the  Revised  Statutes 
in  the  chapter  (chapter  4  of  title  32)  on  preemptions  ;  section  2258  expressly  except- 
ing from  the  lands  of  the  United  States  ''subject  to  the  rights  of  pre-emption," 
"lands  included  in  any  reservation  by  any  treaty,  law,  or  proclamation  of  the  Presi- 
dent for  any  purpose.  ?  (And  see  section  2393.  specifically  excepting  military  reser- 
vations from  the  operation  of  the  laws  authorizing  the  establishing  of  town  sites  ) 

The  "proclamation"  of  the  President  reserving  lands  for  military  purposes  is 
usually  in  the  form  of  a  military  general  order,  issued  by  the  Secretary  of  War, 
whose  act  in  this,  as  in  other  administrative  proceedings  pertaining  to  the  military 
administration,  is  in  legal  contemplation  the  act  of  the  President,  whom  he  represents. 
But  no  head  of  a  Department  or  executive  official  inferior  to  the  President  can  of  his 
own  authority,  make  a  reservation  of  public  lands.  The  power  is  vested  only  in 
Congress  and  the  President.  United  States  v.  Hare,  4  Sawyer,  653.  669. 

In  this  connection  may  be  noted  the  ruling  of  Attorney-General  Bates  (10  Opins 
359)  in  opposition  to  that  of  Justice  McLean,  of  the  Supreme  Court  (in  U.  S.  v.  The 
Railroad  Brid»e  Co.,  6  McLean,  517),  but  apparently  concurred  in  by  Attorney- 
General  Williams  (14  Opins.,  246),  to  the  effect  that  where  a  tract  of  land  of  the 
United  States  has  once  been  legally  reserved  for  military  purposes  the  President  is 
not  empowered,  in  the  absence  of  authority  from  Congress,  to  relinquish  such  reser- 
vation and  restore  the  land  reserved  to  the  general  body  of  the  public  lands. 

b  As  by  section  1237,  Revised  Statutes,  exempting  enlisted  men  from  arrest  for 
certain  debts,  or  by  the  operation  of  the  provisions  of  the  fifty-ninth  article  of  war 
as  to  the  form  to  be  observed  in  making  criminal  arrests  of  military  persons. 

c  By  Article  VI,  section  2,  of  the  Constitution,  '  '  all  treaties  made  under  the  authority 
of  the  United  States  "  are  declared  to  be  "the  supreme  law  of  the  land  ;"  and  Indian 
reservations  "  have  generally  been  made  through  the  exercise  of  the  treaty-making 
power,  and  in  fulfillment  of  treaty  obligations."  (14  Opin.  Att.  Gen.,  182.)  That  land 
can  not  be  reserved  or  occupied  for  military  purposes  to  the  prejudice  of  a  title  previ- 
ously vested  in  an  individual  or  a  corporation,  see,  further,  9  Opin.,  339  ;  13  ibid\,  469. 


THE  MILITARY   LAWS   OF   THE   UNITED   STATES.  425 

•  Second.  Lands  included  within  the  limits  of  any  incor- 
porated town,  or  selected  as  the  site  of  a  city  or  town. 

Third.  Lands  actually  settled  and  occupied  for  purposes 
of  trade  and  business,  and  not  for  agriculture. 

lands,  accorded  to  citizens,  etc..  by  section  2319  He  vised  Statutes,  could  not  authorize 
an  entry,  for  the  purpose  of  prospecting  for  mines  upon  a  military  reservation  once 
duly  defined  and  established  by  the  President;  the  mineral  lands  intended  by  the 
statute  being  clearly  such  as  are  included  within  the  "public  lands  '  of  the  United 
States.  (Ibid. ,513,  par.  5  ) 

Where  certain  persons  had  entered  unlawfully  upon  a  military  reservation,  and 
had  proceeded  to  cultivate  the  soil  of  the  same  for  their  personal  benefit  and  to  lead 
off  water,  needed  for  the  use  of  the  garrison,  in  order  to  irrigate  the  ground  so  cul- 
tivated— admted  that  the  commandant  be  instructed  to  give  such  person  reasonable 
notice  to  quit  with  their  property  and  if  they  did  not  comply,  to  remove  them  by 
military  force  beyond  the  limits  ol  the  reservation,  (a)  (Ibid  ,  par.  6.) 

Squatters  and  other  trespassers  and  intruders  may  and  should  be  expelled,  by 
military  force  if  necessary,  from  a  military  reservation  (b).  But  such  persons,  when 
they  have  been  suffered  to  own  and  occupy  buildings  on  a  reservation,  should  be 
allowed  reasonable  time  to  remove  them.  If  not  removed  after  due  notice  the  same 
should  be  removed  by  the  military.  Material  abandoned  on  a  reservation  by  a  tres- 
passer, on  vacating,  may  lawfully  be  utilized  by  the  commander  for  completing 
roads,  walks,  etc.  Squatters  on  United  States  reservations  may  be  forced  therefrom 
by  criminal  proceedings  had  under  section  5388,  Revised  Statutes,  or  ejected  by  civil 
action.  (Ibid.,  516,  par.  13.) 

Where  squatters  have  made  any  considerable  improvements  upon  a  reservation, 
and  their  value  has  been  duly  estimated— as  by  a  board  constituted  by  the  depart- 
ment commander  and  presentingin  its  report  all  the  evidence  on  the  subject — an  award 
by  the  Secretary  of  War,  acquiesced  in  by  the  claimant,  may  be  sued  upon  in  the 
Court  of  Claims,  which  (in  the  absence  of  evidence  of  fraud  or  mistake)  will  accept 
such  award  as  conclusive (c).  (Ibid.,  par.  14  ) 

The  general  principle  of  the  authority  to  remove  trespassers,  their  structures  and 
property,  from  land  of  the  United  States  embraced  in  a  military  reservation,  held 
specially  applicable  where  the  intrusion  was  for  an  injurious  purpose,  as  where  the 
object  was  to  lay  a  sewer  intended  to  discharge  into  a  main  sewer  constructed  by  ^ 

the  United  States  upon  and  for  the  use  of  its  own  premises.  In  this  instance,  as  the 
trespass  was  committed  by  the  authorities  of  a  municipality,  advised  that  reason- 
able notice  be  given  them  to  remove  their  property  before  resorting  to  military  force 
for  the  purpose,  and  meantime  that  precautions  be  taken  to  prevent  a  connection 
between  the  proposed  sewer  and  the  sewers  under  the  control  of  the  United  States. 
(Ibid.,  p.  517,  par.  16.) 

The  cutting  of  timber  on  a  military  reservation  is  an  offense  against  the  United 
States,  made  punishable  by  section  5388,  Revised  Statutes,  as  amended  by  the  acts  of 
June  4, 1888,  and  of  March  3, 1875,  chapter  151.  So.  grass  cut  on  a  reservation  and 
removed  as  hay  would  be  personal  property  of  which  the  asportation  would  be  lar- 
ceny under  the  act  of  March  3, 1875,  chapter  144.  And  persons  coming  upon  a  military 
reservation  for  the  purpose  of  cutting  wood  or  grass,  or  to  plow  up  the  soil,  or  com-  % 

mit  other  trespass,  may  be  removed  as  intruders,  and  the  post  commander  should 
not  hesitate  to  resort  to  military  force  if  necessary  for  the  purpose.  And  he  may  of 
course  prevent  such  trespassers  from  carrying  off  with  them  any  property  of  the 
United  States.  (Ibid .,  par.  15.) 

In  the  absence  of  any  statute  directly  or  by  necessary  implication  extending  the 
powers  of  the  local  government  of  the  District  of  Columbia  over  the  military  reser- 
vation and  post  at  the  Arsenal  in  Washington,  held  (May,  1879)  that  the  health 
officer  appointed  by  the  Commissioners  (constituting  such  government),  would  not 
be  empowered  of  his  own  authority,  and  without  the  consent  of  the  military  com- 
mander, to  enter  upon  such  reservation  and  remove  or  sibate  a  nuisance  deemed  by 
him  to  exist  thereon.  The  effect  of  the  legislation  in  regard  to  the  government  of 
the  District  is  to  except  therefrom  the  public  buildings  and  grounds  of  the  United 
States,  which  are  left  to  the  charge  of  certain  specified  officials  Even  farther  re- 
moved from  such  government  is  the  reservation  at  the  Arsenal,  the  same  beings 
military  post  commanded  by  the  President  through  a  military  subordinate,  and 
governed  by  military  orders  and  regulations  (Ibid.,  p.  514,  par.  7.) 

The  President's  power  in  the  matter  of  military  reservations  is  limited  to  the 
setting  apart  and  declaring  of  the  reservation ;  and,  for  the  purpose  of  adding  to  and 
modifying  the  boundaries  of,  the  original  reserved  tract,  a  reservation  may  be  re- 
declared  by  the  Executive.  But  the  President  can  not  unreserve  duly  reserved 
land,  either  by  revoking  the  order  of  reservation  or  otherwise.  After  lands  have 
once  been  reserved  for  military  purposes,  the  President,  in  the  absence  of  authority, 
from  Congress,  ia  not  empowered  to  withdraw  or  restore  them.  By  the  authority 
indeed,  of  the  act  of  July  5,  1884,  he  may  abandon  a  useless  military  reservation  and 
turn  the  lands  over  to  the  Interior  Department  for  disposition  and  sale.  Bu  the  can 
not  rereserve  lands  once  turned  over,  they  being  no  longer  a  part  of  the  public  do- 
main, but  lands  in  regard  to  which  Congress  has  expressed  a  different  \vill.  (Ibid., 
par.  8.) 

Land  once  duly  reserved  for  a  public  purpose  becomes  separated  from  the  mass  of 

a  As  to  the  authority  to  remove  trespassers  from  military  reservations,  see  3  Opin. 
Att.  Gen.,  268 ;  9  ibid.,  106, 476 ;  G.  0. 74,  Hdqrs.  of  Army,  1869.  That  this  authority  is 
not  deemed  to  be  affected  by  the  provision  of  section  15  of  the  act  of  June  18, 1878, 
see  chapter  entitled  EMPLOYMENT  OP  MILITARY  FORCE.  See,  also,  Dig.  J.  A.  Gen., 
p.  162,  par.  6;  165  ibid.,  par.  9. 

ft  See  G.  O.  62  of  1869. 

cMaddux  v.  U.  8.,  20  C.  Cls.  R.,  193, 199. 


426  THE    MILITARY    LAWS    OF   THE   UNITED    STATES. 

Fourth.  Lands  on  which  are  situated  any  known  salines 
or  mines. 

Military  or     1201.  The  provisions  of  this  chapter1  shall  not  apply  to 
tion.etc.  military  or  other  reservations  heretofore  made  by  the 

177,  v.'i4,  p.  541 1  United  States,  nor  to  reservations  for  light-houses,  custom- 

Feb.  28, 1877,c.74,  ,  ... 

v.  19,  p.  264.        houses,  mints,  or  such  other  public  purposes  as  the  inter- 

Sec  §393  B  S 

*  ests  of  the  United  States  may  require,  whether  held  under 
reservations  through  the  Land  Office  by  title  derived  from 
the  Crown  of  Spain,  or  otherwise. 

BIGHTS   OF   WAY. 

fo^ighi  hVTI  1202t  Tne  right  of  wav  for  tne  construction  of  highways 
lands  public°ver  public  lands,  not  reserved  for  public  uses,  is  hereby 
ajuiy  26, 1866,  c.  granted.2 

262,  s.  8,  v.  14,  p.  253.    Sec.  2477, B.S. 

Right  of  way     1203.  That  the  Secretary  of  the  Interior  be,  and  hereby 

for      trararoads, 

cauais.andreser-is,  authorized  and  empowered,  under  general  regulations 

Jan.  21, 1895,  v.  to  be  fixed  by  him,  to  permit  the  use  of  the  right  of 

way  through  the  public  lands  of  the  United  States,  not 

within  the  limits  of  any  park,  forest,  military  or  Indian 

public  lands.  So  held  that  a  proclamation  of  the  President,  issued  under  an  act 
of  Congress,  opening  to  settlement  lands  in  Oklahoma  Territory,  could  not  embrace 
or  affect  land  previously  duly  reserved  as  a  military  timber  reservation  for  the  use  of 
the  post  of  Fort  Reno.  (Ibid.,  par.  10.) 

In  the  absence  of  express  statutes  limiting  his  authority,  as  in  the  case  of  military 
reservations,  the  President  has  the  same  authority  to  restore  lands  to  the  public 
domain  that  he  had  to  reserve  them  for  public  uses.  (14  Dec.  Int.  Dep.,  209,  21 2.) 

The  ownership  and  jurisdiction  of  the  soil  between  high  and  low  water  mark  on 
navigable  waters  within  or  bordering  upon  a  State  are  vested  in  the  State,  not  in 
the  United  States.  Tide  lands  belong  to  the  State  only ;  the  United  States  has  no 
interest  in  the  soil  below  high- water  mark  other  than  such  as  may  have  been  ceded 
»  by  the  State,  (a)  So  where  a  military  reservation,  within  a  State,  fronted  upon 

navigable  waters  of  the  United  States,  at  the  mouth  of  the  Columbia  River,  held 
that  the  military  authorities  could  not,  bjr  the  removal  of  fishing  nets  or  fish  traps 
placed  below  high- water  mark,  or  otherwise,  legally  prevent  or  interfere  with  the 
exercise  of  the  right  of  fishery  as  to  scale  or  shell  fish  on  the  tide  lands,  such  right 
being  common  to  all  citizens  except  in  so  far  as  it  may  be  abridged  by  the  State.  (&) 
The  Secretary  of  War  is  without  authority  to  grant  an  exclusive  right  to  use  the 
shores  of  a  military  reservation  for  fishing  purposes.  (Dig.  Opin.  J.  A.  Gen.,  515, 
par.  11.) 

As  between  the  United  States  and  a  State,  the  soil  of  the  bed  of  navigable  waters 
and  of  the  shores  of  tide  waters  below  high- water  mark,  or,  on  rivers  not  reached 
by  the  tide,  the  soil  of  the  shores  below  the  ordinary  water  line,  as  not  affected 
by  freshet  or  unusual  drought,  belongs  to  the  State.  But  natural  accretions  to  land 
owned  by  private  inidviduals  belong  to  the  owners  of  the  land.  Thus,  held  that 
the  accretions  to  Hog  Island,  in  the  mouth  of  the  Missouri  River,  belonged,  not  to 
the  United  States  or  to  the  State  of  Missouri,  but  to  the  owner  of  the  island.  (Ibid., 
465,par.  2.) 

Where  land  proposed  to  be  conveyed  by  a  State  to  the  United  States  for  the  pur- 

in  aline  along  the  sea,  held  that  such  a  deed  would  convey  only  land  extending  to 
and  bounded  r>y  high- water  mark,  and  advised  that  the  grant  should  be  so  expressed 
as  specifically  to  include  the  shore  to  low- water  mark,  and  should  also  embrace  such 

1  Chapter  8,  Revised  Statutes,  relating  to  the  reservation  and  survey  of  town  sites 
on  the  public  lands.  See  also  the  chapter  entitled  NATIONAL  PARKS. 

*Held,  that  an  act  of  Congress  granting  a  railroad  company  a  right  of  way 
through  "the  public  lands"  of  the  United  States  did  not  authorize  it  to  enter  and 
construct  a  track  upon  the  soil  of  a  military  reservation,  the  same  being  no  part  of 
' '  the  public  lands,"(c)  and  that  such  entry  was  therefore  atrespass.  (Dig.  J.  A.  Gen., 
512,  par.  2.)  But  see  section  6,  par.  1211,  post. 

The  right  of  way  through  several  military  reservations  has  been  granted  to  vari- 
ous railroads,  or  other  corporate  bodies,  by  express  legislation  in  each  case. 

o Pollard's  Lessees  v.  Hogan,  3  Howard,  212;  Goodtitle  v.  Kibbe,  11  Howard,  477; 
Doer.  Bebee,  13  Howard,  25;  6  Opin.  Att.  Gen.,  172. 

dWashburn,  Easements  and  Servitudes,  410;  Martin  v.  Waddell,  16  Peters,  367; 
Smith  v.  Maryland,  18  Howard,  71 ;  McCready  v.  Virginia,  94  U.  S.,  391 ;  Lay  v. 
King,  5  Day,  72;  Arnold  v.  Mundy,  1  Halst.,  1;  Parker  v.  Cutler,  etc.,  Co.,  20  Mame, 
353;  Moultonv.  Libbey,  37  ibid.,  472;  Weston  v.  Sampson,  8  Gush.,  347. 

c  Wilcoxt;.  Jackson,  13  Pet.,  499,  513 ;  5  Opin.  Att.  Gen.,  578 ;  6  ibid.,  670 ;  7  ibid.,  574. 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  427 

reservation,  for  tramroads,  canals  or  reservoirs  to  the  ex- 
tent of  the  ground  occupied  by  the  water  of  the  canals  and 
reservoirs  and  fifty  feet  on  each  side  of  the  marginal  limits 
thereof ;  or  fifty  feet  on  each  side  of  the  center  line  of  the 
tramroad,  by  any  citizen  or  any  association  of  citizens  of 
the  United  States  engaged  in  the  business  of  mining  or 
quarrying  or  of  cutting  timber  and  manufacturing  lumber. 
Act  of  January  21,  1895  (28  Stat.  L.,  635). 

ACQUISITION   OF   LANDS   BY   THE   UNITED   STATES. 

1204.  No  public  money  shall  be  expended  upon  any  site    Title  to  land 
or  land  purchased  by  the  United  States  for  the  purposes  of  by  Atto^ey- 
erecting  thereon  any  armory,  arsenal,  fort,  fortification,    Sept.  11,  i84i, 
navy-yard,  custom-house,  light-house,  or  other  public  build-  ?688'  No-6>v-5'p- 
ing,  of  any  kind  whatever,  until  the  written  opinion  of  the    Sec* 356' E* s* 
Attorney- General  shall  be  had  in  favor  of  the  validity  of 
the  title,  nor  until  the  consent  of  the  legislature  of  the 
State  in  which  the  land  or  site  may  be,  to  such  purchase, 
has  been  given.    The  district  attorneys  of   the  United 

water-covered  lands  as  would  be  sufficient  to  prevent  the  erection  by  the  authority  of 
the  State  of  structures  that  might  interfere  with  the  proper  use  of  the  land  for  pur- 
poses of  fortifications.  (Ibid.,  par.  3  ) 

In  the  ease  of  a  Territory,  however,  the  sovereign  right  to  the  whole  soil  is  exclu- 
sively in  the  United  States.  Thus  the  reservation  of  an  island  in  the  tide  waters  of 
a  Territory  includes  not  only  its  soil  down  to  high-water  mark  but  all  its  tide  lands 
also.  But  in  a  Territory,  in  the  absence  of  special  regulation  of  the  subject  by  Con- 
gress, no  executive  authority  can  lawfully  restrict  the  common-law  right  of  piscary 
of  the  inhabitants  (including  the  taking  of  shellfish)  in  the  tide  waters  of  the  Ter- 
ritory. So  the  commander  of  a  reserved  military  post,  fronting  upon  navigable 
water  of  a  Territory,  is  not  empowered  to  remove  from  such  tide  waters  the  seines 
or  traps  of  fishermen,  though,  if  the  public  interests  require  it,  he  may  forbid  or 
restrict  the  use  of  the  shore  abov"e  high-water  mark  for  the  hauling  of  seines  or 
landing  of  fish.  (Dbid.,  par.  12.) 

The  State  of  Kansas,  having  surrendered  to  the  United  States  its  jurisdiction  over 
the  military  reservations  of  Forts  Leavenworth  and  Riley,  by  an  act  of  its  legisla- 
ture of  February  23, 1872,  which  was  earlier  in  date  than  the  prohibition  laws  of  the 
State  (having  their  origin  in  the  constitution  adopted  November  2, 1880),  held  that 
such  laws  did  not  extend  over  and  could  not  be  applied  to  those  reservations.  (Ibid., 
p.  517,  par.  18.) 

To  legalize  the  use  of  a  public  road  (State  county,  or  Territorial)  across  a  corner 
of  a  military  reservation  held  as  follows :  (1)  The  Secretary  of  War  may,  under  the 
act  of  July  5,  1884,  section  6,  permit  the  extension  of  such  a  road  across  a  military 
reservation  "whenever,  in  his  judgment,  the  same  can  be  done  without  injury  to 
the  reservation  or  inconvenience  to  the  military  forces  stationed  thereon ;"  (2)  or  he 
can  abandon  to  the  Secretary  of  the  Interior,  under  the  same  act,  the  strip  of  the 
reservation  to  be  traversed  by  the  road,  and  the  latter  official  can  then  authorize 
the  road  under  section  2477,  Revised  Statutes,  by  which  "rights  of  way  for  the  con- 
struction of  highways  are  granted  over  public  lands  not  reserved  for  public  uses." 
(Ibid.,  par.  19.)  See  section  6,  par.  1211,  post. 

The  occupation  of  land,  by  permission  of  the  military  authorities,  does  not  con- 
stitute a  settlement  that  is  within  the  protection  accorded  bona  fide  settlers  by  the 
act  of  July  5, 1884.  (15  Dec.  Int.  Dept.,  487.) 

The  occupation  and  improvement  of  land,  with  a  view  to  preemption,  does  not 
except  it  from  a  subsequent  reservation  for  military  purposes.  (15  Dec.  Int.  Dept., 
487.)  Land  reserved  for  military  purposes  is  not  subject  to  homestead  entry  (13 
Dec.  Int.  Dep.,  617;  Grisar  v.  McDowell,  6  Wall,  363,  381)  or  to  entry  under  the 
public  land  laws.  (13  Dec.  Int.  Dep.,  628.) 

In  the  administration  of  the  public  lands  the  decisions  of  the  land  department  upon 
questions  of  fact  are  conclusive,  and  only  questions  of  law  can  be  reviewed  in  the 
courts.  (Catholic  Bishop  of  Nesqually  v.  Gibbon,  158  U.  S.,  155.) 

SUPERVISION  OP  RESERVATIONS. 

Department  commanders  will  supervise  all  military  reservations  within  the  limits 
of  their  commands,  and'if  necessary,  will  use  force  to  remove  trespassers.  No 
license  or  permission  to  any  civilian  to  use  or  occupy  any  part  of  a  reservation  will 
be  given,  except  by  the  Secretary  of  War,  unless  he  be  in  the  employ  of  the  Gov- 
ernment, or  in  the  family  or  service  of  persons  there  employed.  (Par.  210,  A.  R.,  895.) 


428  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

States,  upon  the  application  of  the  Attorney  General,  shall 
furnish  any  assistance  or  information  in  their  power  in  rela- 
tion to  the  titles  of  the  public  property  lying  within  their 
respective  districts.  And  the  Secretaries  of  the  Depart- 
ments, upon  the  application  of  the  Attorney-General,  shall 
procure  any  additional  evidence  of  title  which  he  may  deem 
necessary,  and  which  may  not  be  in  the  possession  of  the 
officers  of  the  Government,  and  the  expense  of  procuring 
it  shall  be  paid  out  of  the  appropriations  made  for  the  con- 
tingencies of  the  Departments  respectively.1 
Restriction  on  1205.  No  land  shall  be  purchased  on  account  of  the 

purchases     ol 

land.  United    States,    except   under    a    law    authorizing    such 

May  1,  1820,  c. 
5Vec!'3V7 

Assent'  'of  1206.  The  President  of  the  United  States  is  authorized 
chases  of  lands,  to  procure  the  assent  of  the  legislature  of  any  State,  within 
coifs'.  2,  v.  4,  p'.  which  any  purchase  of  land  has  been  made  for  the  erection 

264. 

1  See  chapters  entitled  THE  DEPARTMENT  OF  JUSTICE,  CONTRACTS  AND  PURCHASES. 
THE  ENGINEER  CORPS,  NATIONAL  PARKS   aud  NATIONAL  CEMETERIES  for  additional 
provisions  respecting  the  acquisition  of  lands.     "  When,  in  an  act  appropriating  for 
the  purchase  of  additional  land  for  a  public  building,  the  piece  of  ground  to  be  pur 
chased  is  particularly  described,  the  appropriation  can  not  be  used  for  the  purchase 
of  another  tract  equally  suitable  for  the  purpose,  and  at  a  price  within  the  sura  pro 
vided,  although  the  piece  named  can  not  be  secured  within  the  amount  appropri- 
ated."    (2  Compt.  Dec.,  77.)    See.  also,  section  1136,  Revised  Statutes  (par.  1216.  post), 
for  provision  requiring  all  officers  of  the  United  States  having  title  papers  of  prop- 
erty purchased  or  about  to  be  purchased  in  their  possession  to  furnish  the  same 
forthwith  to  the  Attorney-General 

The  title  to  lands  purchased  on  account  of  the  United  States  is  not  properly 
assured  by  a  certificate  of  "no  liens."  signed  by  the  attorney  who  made  the  abstract 
of  title.  The  proper  person  to  make  such  a  certificate  is  the  custodian  of  the 
records  of  judgments  and  other  record  liens  in  the  county  in  which  the  land  is 
located,  (a)  (Ibid.,  631,  par.  16.) 

2  In  the  absence  of  statutory  authority,  land  can  not  be  purchased  for  the  United 
States  with  any  more  legality  than  land  of  the  United  States  can  be  sold  or  disposed 
of.    By  a  provision  of  an  act  of  May  1, 1820  now  contained  in  section  2736,  Revised 
Statutes,  it  is  declared  that  'No  land  shall  be  purchased  on  account  of  the  United 
States  except  under  a  law  authorizing  such  purchase."    Held  that  the  term  ''pur- 
chase" was  to  be  understood  in  its  legal  sense,  as  embracing  any  mode  of  acquiring 
property  other  than  by  descent;  (b)  and  that  therefore  the  Secretary  of  War  would 
not  be  empowered  to  accept  a  gift  of  land  or  interest  in  land  tor  any  use  or  purpose 

•  independently  of  statutory  authority,  (c)  And  similarly  held  as  to  the  construction 

of  the  same  word  ("purchase")  as  employed  in  section  355,  Revised  Statutes. and 
advised  that  an  appropriation  of  public  money  could  not  legally  be  expended  for  the 
erection  of  a  public  building  upon  land  donated  to-the  United  States  until  the 
Attorney-General  had  passed  the  title  and  the  legislature  of  the  State  in  which  the 
land  was  situated  had  given  its  consent  to  the  grant,  (d)  (Dig.  J.  A.  Gen..  627,  par.  5.) 

The  statutory  authority  relied  upon  for  the  purchase  of  land  by  a  head  of  a  De 
partment  should  bo  clear  and  indisputable.  Thus,  held  that  authority  to  purchase 
additional  land  for  the  interment  of  soldiers  could  not  be  derived  from  the  general 
provision  of  the  annual  appropriation  act,  appropriating  a  certain  sum  for  maintain- 
ing the  existing  national  cemeteries  (Ibid.,  628,  par.  6. ) 

A  statute  conferring  a  specific  authority  to  purchase  certain  laud  should,  in  the 

a  See  G.  O.  47  of  1881  for  Attorney-General  s  Regulations  as  to  making  deeds, 
proving  title  to  lands,  etc. 

6  See  7  Opin.  Att.  Gen.,  114, 121 ;  Ex  parte  Hebard,  4  Dillon  384. 

cSee  this  opinion  concurred  in  by  an  opinion  of  the  Attorney  General,  in  16 
Opins.,  414.  As  statutes  specially  authorizing  the  acceptance  of  donations  of  land, 
note  the  early  acts  of  March  20  and  May  9,  1794.  and.  later,  theactsof  February  18  1867; 
March  3,1875;  June  23,1879.  That  authority,  however,  to  purchase,  and,  a  fortiori 
perhaps,  to  accept  a  gift  of,  the  necessary  land,  may  bo  implied  from  an  appropria- 
tion act  granting  a  sum  of  money  for  a  public  work  requiring  for  its  construction 
the  occupation  and  use  of  certain  land  of  an  individual  or  corporation.  Seeopiniona 
of  the  Attorney-General  in  15  Opins. ,212;  16  ibid.,  119.  387.  In  the  opinion  in  16 
Opins. ,  119,  it  was  held  that  where  no  statutory  authority  whatever  existed  tor 
accepting  a  gift  of  land  a  head  of  a  Department  would  not  be  justified  in  accepting 
the  same  on  the  condition  that  Congress  ratify  the  acceptance  and  in  anticipation  of 
such  ratification.  ^ 

d  But  under  the  implied  authority  contained  in  section  1838  Revised  Statutes, 
lands  required  as  sites  for  forts,  arsenals,  etc  ,  or  needful  public  buildings,  may  be 
purchased  (or  acquired  by  gift)  without  the  consent  of  the  State,  though  in  the 
absence  of  such  consent  public  money  can  not,  in  view  of  the  provisions  of  section 
355,  legally  be  expended  upon  the  buildings.  (10  Opin.  Att.  Gen.,  35 ;  15  ibid.,  212.) 


THE    MILITARY   LAWS    OF    THE   UNITED    STATES.  429 

of  forts,  magazines,  arsenals,  dockyards,  and  other  needful 
buildings,  without  such  consent  having  been  obtained.1 

1207.  Whenever  any  lands  have  been  or  shall  be  con- .  ?<"™r  to  ob- 

tain releases. 

veyed  to  individuals  or  officers,  for  the  use  or  benefit  of   Apr.  23, 1828,  c. 

41.  a.  3,  v.  4  p.  264. 

the  United  States,  the  President  is  authorized  to  obtain  sec.3752,B.s. 

from  such  person  a  release  of  his  interest  to  the  United 

States.2 

1208.  That  in  every  case  in  which  the  Secretary  of  the  Acquisitions  of 

_.  j_-i  M*  f    ,t       *-*  i   i          i  lands  for  public 

Treasury  or  any  other  officer  of  the  Government  has  been,  uses  by  condem- 
or  hereafter  shall  be,  authorized  to  procure  real  estate  for    Aug!  i, 
the  erection  of  a  public  building  or  for  other  public  uses  he 25>p< 
shall  be,  and  hereby  is,  authorized  to  acquire  the  same  for 
the  United  States  by  condemnation,  under  judicial  process, 
whenever  in  his  opinion  it  is  necessary  or  advantageous  to 
the  Government  to  do  so,  and  the  United  States  circuit  or 
district  courts  of  the.  district  wherein  such  real  estate  is 

exercise  of  the  authority.be  strictly  construed,  Thus,  where  a  statute  authorized 
the  Secretary  of  War  to  purchase,  for  a  certain  stated  sum,  a  certain  described  tract 
containing  a  specified  number  of  acres,  held  that  the  act  did  not  invest  him  with 
discretion  to  purchase  a  portion  only  of  such  tract.  (Ibid.,  par.  7.) 

Authority  to  acquire  land  in  a  State,  by  the  exercise  of  the  right  of  eminent 
domain,  whether  by  proceedings  for  condemnation  in  the  United  States  circuit  court 
or  in  the  courts  of  the  State,  (a)  can  be  vested  in  an  executive  official  of  the  United 
States  only  by  express  legislation  of  Congress. 

The  Constitution  vests  in  Congress  the  exclusive  power  to  dispose  of  the  property 
of  the  United  States,  real  or  personal,  (b)  .  The  Secretary  of  War,  in  the  absence  of 
authority  from  Congress,  can  not  alienate  land  of  the  United  States.  Thus,  where 
a  company  proposed  to  cut  out  and  remove  a  part  of  a  dam  (some  140  feet)  on  Fox 
River,  Wisconsin,  belonging  to  the  United  States,  and  to  substitute  another,  as  a 
private  improvement,  below,  held  that  this  was  a  proposition  for  the  alienation  by  an 
executive  official  of  public  property,  and  could  not  legally  be  entertained.  Ibid.,  630, 
par.  14.) 

In  view  of  the  prohibition  of  section  3736, Revised  Statutes  that  "no  land  shall 
be  purchased  on  account  of  the  United  States,  except  under  a  law  authorizing  the 
same,"  the  Secretary  of  War  can  not  accept  a  grant  by  gift  of  land  or  of  an  ease- 
ment in  land,  without  authority  of  special  statute  [By  act  of  April  24, 1888,  he  is 
expressly  empowered  to  purchase,  or  accept  donations  of,  land  for  river  and  harbor 
improvements.]  And  held  that,  in  the  absence  of  authority  from  Congress,  a  pur- 
chase of  lots  in  a  city  cemetery,  for  the  burial  purposes  of  a  neighboring  military 
post,  would  not  be  legal  or  operative.  (Ibid  par.  15.) 

1  The  State  of  South  Carolina  ceded  to  the  United  States,  by  an  act  of  its  legisla- 
ture of  1794,  the  land  of  the  present  military  reservation  at  Southport  S  C  .  the 
site  of  old  Fort  Johnson.    A  condition  of  the  deed  of  cession  was  to  the  effect  that 
a  fortification  should  be  erected  on  the  land  within  three  years  and  be  maintained 
forever  thereafter  for  the  public  service,  or  the  land  should  'revert  to  the  State      The 
time  allowed  was  repeatedly  extended,  the  last  extension  expiring  in  1818  when  a 
fortification  had  been  constructed  it  not  fully  completed.     The  fort  has  long  since 
ceased  to  be  garrisoned.    In  1889  an  individual  citizen  "entered"  the  site  as  State 
land.    Held  that  this  act  was  without  legal  authority  or  effect;  that  the  condition 
subsequent  in  the  deed  was  one  of  the  breach  of  which  the  grantor,  the  State,  could 
alone  take  advantage;  and  that,  as  the  State  had  not  proceeded  to  reenter  for  such 
breach,  the  United  States  was  not  ousted  and  could  legally  continue  to  hold  the 
premises,  (c)     (Ibid.,  par.  18.) 

The  act  of  February  27, 1877  (19  Stat.  L.,  242),  contains  a  requirement  "that  it  shall 
be  the  duty  of  all  officers  of  the  United  States  having  any  of  the  title  papers  (of 
property  purchased,  or  about  to  be  purchased,  for  the  erection  of  public  buildings) 
in  their  possession,  to  furnish  them,  forthwith,  to  the  Attorney  General.  No  public 
money  shall  be  expended  until  the  written  opinion  of  the  Attorney-General  shall 
be  had." 

2  All  papers  relating  to  the  Washington  Aqueduct  and  public  buildings  and  grounds 
in  the  District  of  Columbia  will  be  filed  in  the  office  of  the  Chief  of  Engineers.    All 
other  deeds  and  papers  pertaining  to  the  title  or  sale  of,  and  any  lease,  grant,  license, 
or  easement  of,  upon,  or  over  any  military  reservation  or  other  lands  under  the  juris- 
diction of  the  War  Department  will  be  filed  in  the  office  of  the  Judge  Advocate- 
General.    When  any  such  papers  come  into  the  possession  of  any  bureau  they  shall 
within  five  days  thereafter  be  transferred  to  the  office  of  the  Judge-Advocate- 
General  .    (Par.  704,  A .  R . ) 

a  See  Kohl  v.  U.  S.,  1  Otto,  367. 

&16Opin.Att.Gen.,  477. 

c  See  Schulenberg  v.  Harriman,  21  Wall.,  44. 


430  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

jurisdiction  to  located,  shall  have  jurisdiction  of  proceedings  for  such 
courts.  '  es  condemnation,  and  it  shall  be  the  duty  of  the  Attorney- 
General  of  the  United  States,  upon  every  application  of  the 
Secretary  of  the  Treasury,  under  this  act,  or  such  other 
officer,  to  cause  proceedings  to  be  commenced  for  condem- 
nation, within  tnirty  days  from  the  receipt  of  the  applica- 
tion at  the  Department  of  Justice.1  Act  of  August  1,  1888 
(25  Stat.  L,,  357). 

Procedure  i  n     1209.  The  practice,  pleadings,  forms  and  modes  of  pro- 
condemnation.  .  . 

Sec.2,t6td.       ceeding  in  causes  arising  under  the  provisions  ot  tins  act 

shall  conform,  as  near  as  may  be,  to  the  practice,  pleadings, 
forms  and  proceedings  existing  at  the  time  in  like  causes  in 
the  courts  of  record  of  the  State  within  which  such  circuit 
or  district  courts  are  held,  any  rule  of  the  court  to  the 
contrary  notwithstanding.  Sec.  2,  ibid. 

JURISDICTION   OVER   RESERVATIONS. 

jurisdiction     1210,  The  Congress  shall  have  power: 

over    reserva-_  -r-.i,  •          -,,    ^ 

tions;  when  ex-  To  exercise  exclusive  Legislation  in  all  Cases  whatso- 
Art.  i,  sec.  i,  ever,  over  such  District  (not  exceeding  ten  Miles  square) 
as  may,  by  Cession  of  particular  States,  and  the  Accep- 
tance of  Congress,  become  the  Seat  of  the  Government  of 
the  United  States,  and  to  exercise  like  Authority  over  all 
Places  purchased  by  the  Consent  of  the  Legislature  of  the 
State  in  which  the  Same  shall  be,  for  the  Erection  of  Forts, 
Magazines,  Arsenals,  dock  Yards,  and  other  needful  Build- 
ings.2 Article  J,  section  <S,  Constitution  of  the  United  States. 


1  The  power  to 


take  private  property  for  public  uses,  generally  termed  the  right  of 
eminent  domain,  belongs  to  every  independent  government.  It  is  an  incident  of 
sovereignty  and  requires  no  constitutional  recognition.  The  provision  found  in  the 
fifth  amendment  to  the  Federal  Constitution,  and  in  the  constitutions  of  the  several 
States,  for  just  compensation  for  property  taken,  is  merely  a  limitation  upon  the  use 
of  the  power.  It  is  no  partof  the  power  itself,  but  a  condition  upon  which  the  power 
may  be  exercised.  U.  S.  v.  Jones.  109  U.  S  ,  513,  518;  Boom  Co.  v.  Patterson.  98  U  S.,106; 
Kohlr.  U.S.,91  U.S.,  367;  Cooley  Con.  Lim.,  526,  U.  S.V.Oregon  Railway  and  Nav. 
Co.,  16  F.  B.f  524.  In  some  instances  tbe  States,  by  virtue  of  their  own  right  of  emi- 
nent domain,  havecondemned  lands  for  the  use  of  the  General  Government,  and  such 
condemnations  have  been  sustained  by  their  courts,  without,  however,  denying  the 
rightof  the  United  States  to  act  independently  of  the  States  Kohlt>.  U.  S.,91  U  S.. 
367.  373;  Gilmerv.  Lime  Point,  18  Cal..  729;  Burtv.  Merchants  Ins.  Co..  106  Mass  ,  356; 
U.  S.v.Jones,  109  U.  S  ,513.  The  estate  acquired  by  such  exercise  of  the  rightof 
eminent  domain  on  the  part  of  the  United  States  may  be  a  fee  simple  or  may  be  in 
the  nature  of  an  easement.  16  Op.  Att.  Gen  .  387.  The  legislature  is  the  jadge  of  the 
necessity  for  exercising  the  right  in  any  case  Cooley  Const.  Law,  527. 

2Lands  may  be  acquired  by  the  United  States,  within  tbe  territory  of  a  State,  in 
anyone  of  three  ways:  (1)  By  purchase  without  the  consent  of  the  legislature  of  the 
State  within  which  the  lands  are  situated  ;  (2)  by  purchase  with  such  consent,  (3)  by 
an  exercise  of  the  right  of  eminent  domain.  Kohl  v.  U.  S.,  91  U.  S,  367. 

When  the  United  States  acquire  lands  within  the  limits  of  a  State,  with  the  con- 
sent of  the  legislature  of  the  State,  for  the  erection  of  forts,  arsenals,  dockyards. 
and  other  needful  buildings,  the  Constitution  confers  upon  them  exclusive  jurisdic- 
tion of  the  tract  so  acquired;  but  when  they  acquire  such  lands  in  any  other  way 
than  by  purchase  with  the  consent  of  the  legislature  they  will  hold  the  lands  sub- 
ject to  this  qualification  ;  that  if  upon  them  forts,  arsenals,  or  other  public  build- 
ings are  erected  for  the  uses  of  the  General  Government,  such  buildings,  with 
their  appurtenances,  as  instrumentalities  for  the  execution  of  its  powers,  will  be 
free  from  any  such  interference  and  jurisdiction  of  the  State  as  would  destroy  or 
impair  their  effective  use  for  the  purposes  designed.  Such  is  the  law  with  reference 
to  all  instrumentalities  created  by  the  General  Government.  Their  exemption  from 
State  control  is  essential  to  the  independence  and  sovereign  authority  of  the  United 
States  within  the  sphere  of  their  delegated  powers.  But  when  not  used  as  such 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  431 

SALE  OF  ABANDONED  AND  USELESS  MILITARY  BESER- 
[/  YATIONS. 

1211.  That  whenever,  in  the  opinion  of  the  President  of  ,Sa!e>  e,to-.  °| 

abandoned   and 

the  United  States,  the  lands,  or  any  portion  of  them,  in-  useless  military 
eluded  within  the  limits  of  any  military  reservation  hereto-    July  5,  J884,  v. 
fore  or  hereafter  declared,  have  become  or  shall  become 
useless  for  military  purposes,  he  shall  cause  the  same  or  so 
much  thereof  as  he  may  designate,  to  be  placed  under  the 
control  of  the  Secretary  of  the  Interior  for  disposition  as 
hereinafter  provided,  and  shall  cause  to  be  filed  with  the 
Secretary  of  the  Interior  a  notice  thereof.    Act  of  July  5, 
1884  (23  Stat.  L.,  103). 

instrumentalities,  the  legislative  power  of  the  State  will  be  as  full  and  complete  as 
over  any  other  places  within  her  limits  Fort  Leavenworth  R.  R.  Co.  v.  Lowe,  114 
U.  S.,  525,  539.  Where  the  absolute  title  to  property  remains  in  the  United  States, 
no  matter  for  what  purpose  it  is  acquired  or  held,  it  13  not  subject  to  State  or  munic- 
ipal taxation.  Am.  and  Engl.  Ency  of  Law,  vol.  25,  p.  110,  and  cases  cited. 

The  purchase  of  lands  in  a  State  by  the  General  Government,  with  legislative 
consent,  does  not,  ipso  facto,  confer  upon  the  General  Government  exclusive  juris- 
diction, unless  the  purchase  is  for  a  fort  or  for  some  other  purpose  distinctly  named 
in  Article  I,  §  8,  of  the  Constitution .-  and  m  order  that  exclusive  jurisdiction  may  be 
acquired  over  laud  taken  for  any  other  purpose,  the  act  providing  therefor  and  call- 
ing for  the  consent  must  unequivocally  declare  that  exclusive  jurisdiction  is 
intended  and  necessary,  or  such  necessity  must  be  manifest  from  the  purpose  of  the 
act.  Accordingly,  held,  that  the  acts  of  Congress  establishing  the  National  Home 
for  Disabled  Vo'unteer  Soldiers,  and  creating  a  corporation  authorized  to  take  and 
hold  lands  for  the  purpose  of  such  homes,  containing  no  declaration  of  the  neces- 
sity of  exclusive  jurisdiction  in  the  General  Government  over  such  lands,  do  not 
vest  such  exclusive  jurisdiction  in  the  United  States,  upon  the  consent  of  the  State 
being  given  to  the  acquisition  of  such  lands.  In  re  Kelly,  71  Fed.  Rep.,  545. 

A  cession  to  the  General  Government,  in  the  act  giving  the  consent  of  the  State  to 
the  purchase  of  such  land,  of  "jurisdiction,"  does  not  confer  exclusive  jurisdiction, 
the  purpose  of  the  act  not  requiring  it,  but  such  jurisdiction  only,  concurrent  with 
that  of  the  State,  as  Congress  may  find  necessary  for  the  objects  of  the  cession. 
Ibid. 

Upon  lands  so  ceded  for  the  purpose  of  a  home  for  disabled  volunteers,  the  crimi- 
nal laws  of  the  United  States,  which  apply  only  to  places  within  their  exclusive 
jurisdiction,  are  not  operative.  Ibid. 

A  State  may  cede  to  the  United  States  exclusive  jurisdiction  over  a  tract  within 
its  limits  in  a  manner  not  provided  for  in  the  Constitution  of  the  United  States ; 
and  may  prescribe  conditions  to  the  cession,  if  they  are  not  inconsistent  with  the 
effective  use  of  the  property  for  the  purpose  intended.  The  reservation  which  has 
usually  accompanied  the  consent  or  the  States,  that  civil  and  criminal  process  of 
the  State  courts  may  be  served  in  the  places  purchased,  is  not  considered  as  interfer- 
ing in  any  respect  with  the  supremacy  of  the  United  States  over  them,  but  is  admitted 
to  prevent  them  from  becoming  an  asylum  for  fugitives  from  justice.  Fort  Leaven- 
worth  R.  R.  Co.  v.  Lowe,  114  U.  S.,  525,  533.  Such  reservations  provide  only  "that 
civil  and  criminal  process,  issued  under  the  authority  of  the  State,  which  must,  of 
course,  be  for  acts  done  and  cognizable  by  the  State,  may  be  executed  within  the  ceded 
lands,  notwithstanding  the  cession."  Not  a  word  is  said  from  which  wecaninfer  that 
it  was  intended  that  the  State  should  have  aright  to  punish  for  acts  done  within  the 
ceded  lands.  Ibid.,  534;  United  States  v.  Cornell,  2  Mason,  60;  Commonwealth  v. 
Clary,  8  Mass.,  72;  Mitchell  v.  Tibbetts,  17  Pick.,  298;  People  v.  Godfrey,  17  Johns 
(N.Y.),  225. 

Residents  within  such  ceded  districts  have  none  of  the  duties  and  obligations  and 
none  of  the  rights  and  privileges  of  citizens  of  the  States  within  which  such  lands 
are  situated.  They  are  not  subject  to  taxation;  they  can  not  exercise  the  right  of 
suffrage.  6  Opin.  Att.  Gen.,  577;  10  ibid.,  35;  Sinks  v.  Reese,  19  Ohio,  306.  They 
are  not  entitled  to  the  benefit  of  the  public  schools.  1  Met.  (Mass.),  580. 

An  act  of  the  legislature  of  a  State  ceding  to  the  United  States  the  jurisdiction  of 
the  State  over  a  tract  of  land  used  as  a  military  reservation,  upon  condition  that 
such  jurisdiction  shall  continue  only  so  long  as  the  United  States  shall  own  and 
occupy  such  reservation ;  that  the  State  shall  have  the  right,  within  the  reservation, 
to  serve  civil  process  and  to  execute  criminal  process  against  persons  charged  with 
crime  committed  within  the  State,  and  that  roads  may  be  opened  and  kept  in  repair 
within  such  reservation,  cedes  to  the  United  States  the  entire  political  jurisdiction 
of  the  State  over  the  place  in  question,  including  judicial  and  legislative  jurisdiction, 
except  as  to  service  of  process  and  opening  roads,  and  the  same  can  not  be  affected 
or  further  limited,  without  the  consent  of  the  United  States,  by  a  subsequent  act  of 
the  State  legislature  attempting  to  impose  additional  restrictions  on  the  jurisdiction 
ceded.  In  re  Ladd,  74  Fed.  Rep.,  31. 

After  such  cession  a  justice  of  the  peace,  acting  under  authority  of  the  State,  has 
no  jurisdiction  over  the  ceded  territory  in  matters  of  alleged  criminal  violation  of 
the  laws  of  the  State  committed  on  such  territory.  Ibid. 

It  is  a  general  rule  of  public  law,  recognized  and  aeted  upon  by  the  United  States, 


432 


THE    MILITARY    LAWS   OF    THE    UNITED    STATES. 


Survey  and     gECj.  2.  That  the  Secretary  of  the  Interior  may.  if  in  his 

8  u  b  a  i  v  i  sion  of  . 

lands.  opinion  the  public  interests  so  require,  cause  the  said  lands, 

or  any  part  thereof,  in  such  reservations,  to  be  regularly 
surveyed,  or  to  be  subdivided  into  tracts  of  less  than  forty 
acres  each,  and  into  town  lots,  or  either,  or  both.  He  shall 
cause  the  said  lands  so  surveyed  and  subdivided,  and  each 
Appraised.  tract  thereof,  to  be  appraised  by  three  competent  and  dis- 
interested men  to  be  appointed  b.y  him,  and  who  shall, 
after  having  each  been  first  duly  sworn  to  impartially  and 
faithfully  execute  the  trust  reposed  in  them,  appraise  the 


that  whenever  political  jurisdiction  and  legislative  power  over  any  territory  are 
transferred  from  one  nation  or  sovereign  to  another,  the  municipal  laws  of  the 
country,  that  is,  laws  which  are  intended  for  the  protection  of  private  rights,  con 
tinue  in  force  until  abrogated  or  changed  by  the  new  government  or  sovereign.  By 
the  cession  public  property  passes  from  one  government  to  the  other,  but  private 
property  remains  as  before,  and  with  it  those  municipal  laws  which  are  designed  to 
secure  its  peaceful  use  and  enjoyment.  As  a  matter  of  course,  all  laws,  ordinances, 
and  regulations  in  conflict  with  the  political  character,  institutions  and  constitution 
of  the  new  government  are  at  once  displaced  *  *  '  But  with  respect  to  other 
laws  affecting  the  possession,  use,  and  transfer  of  property,  and  designed  to  secure 
goodorderand  peace  in  thecommunity,  and  promote  its  health  and  prosperity,  which 
are  of  a  strictly  municipal  character,  the  rule  is  general  that  a  change  of  govern- 
ment leaves  them  in  force  until,  by  direct  action  of  the  new  government,  they  are 
altered  or  repealed.  Chicago  and  Pacific  R  R.  v.  McGlinn,  114  U.  S.,.542,  547; 
American  Insurance  Co.  v.  Cantor,  1  Pet.,  542;  Halleck  Int.  Law,  ch.  34,  sec.  14. 

"While  after  such  cession  the  municipal  laws  of  the  State  governing  property  and 
property  rights  continue  in  force  in  the  ceded  territory,  except  so  far  as  in  conflict 
with  the  laws  and  regulations  of  the  United  States  applying  thereto,  the  criminal 
laws  of  the  State  cease  to  be  of  force  within  the  ceded  territory,  and  laws  regu- 
lating the  sale  of  intoxicating  liquors,  requiring  a  license  therefor,  and  punishing 
unlicensed  sales,  cease  to  be  operative,  both  as  in  conflict  with  the  regulations  of 
the  United  States  governing  military  reservations,  and  as  penal  in  character.  In  re 
Ladd,  74  Fed.  Rep.,  31. 

Such  cessions  are  "necessarily  temporary,  to  be  exercised  only  so  long  as  the 
places  continue  to  be  used  for  the  public  purposes  for  which  the  property  was  ac- 
quired, or  reserved  from  sale."  When  they  cease  to  be  so  used,  the  jurisdiction 
reverts  to  the  State.  Fort  Leavenworth  R.  R.  Co.  v.  Lowe.  114  U.  S.,  525,  542. 

A  lease  by  the  United  States  to  a  city  for  market  purposes,  of  vacant  land  which 
was  a  part  of  land  ceded  by  the  State  to  the  United  States  for  the  purposes  of  a  navy- 
yard  and  naval  hospital,  with  a  provision  that  the  United  States  may  retain  such 
use  and  jurisdiction  no  longer  than  the  premises  are  used  for  such  purposes, 
operates,  at  least  while  the  lease  is  in  force,  to  suspend  the  exclusive  authority  and 
jurisdiction  of  the  United  States  over  the  leased  land,  and  thereby  makes  it  subject 
to  the  j  urisdiction  of  State  courts  in  an  action  for  ouster  therefrom.  Palmer  v.  Bar- 
rett, 162  U.  S.,  399.  The  character  and  purposes  of  the  occupation  of  a  reservation 
haying  been  officially  and  legally  established  by  that  branch  of  the  Government 
which  has  control  over  such  matters,  it  is  not  open  to  the  courts,  on  a  question  of 
jurisdiction,  to  inquire  what  may  be  the  actual  uses  to  which  any  portion  of  the 
reserve  is  temporarily  put  Benson  v.  U.  S.,  146  U  .  S.,  331. 

Over  lands  reservea  for  military  or  other  governmental  purposes  in  the  Territories 
the  jurisdiction  of  the  United  States  is  necessarily  paramount.  When  a  Territory 
is  admitted  as  a  State  it  is  within  the  power  of  Congress  to  stipulate  for  the  power 
of  exclusive  jurisdiction  over  such  reservations,  or  to  except  them  from  the  jurisdic- 
tion of  the  State.  Failing  to  do  this,  however,  the  State  can  exercise  such  authority 
and  jurisdiction  over  them  as  over  similar  property  held  by  private  individuals  ;  and 
the  United  States  can  acquire  exclusive  jurisdiction  only  when  the  same  has  been 

State  in  which  the  lands  are  si 


the  legislature  of  the  State  in  which  the  lands  are  situated.  Fort 
Leavenworth  R.  R.  Co.v.  Lowe,  114  U.S.,  525.  Lands  acquired  by  the  United  States 
for  public  uses,  by  purchase  with  the  consent  of  the  States,  or  by  an  exercise  of  the 
right  of  eminent  domain,  are  not  public  lands,  that  term  applying  only  to  "such 
lands  as  are  subject  to  sale  or  other  disposition  under  general  laws.'1  Newhall  v. 
Sanger,  92  U  S.,  761. 

When  an  act  admitting  a  State  into  the  Union,  or  organizing  a  Territorial  govern- 
ment, provides  that  the  lands  in  possession  of  an  Indian  tribe  shall  not  be  a  part 
of  such  State  or  Territory,  the  new  government  has  no  jurisdiction  over  them. 
Langford  v.  Monteith,  102  U.  S.,  145.  For  an  example  of  such  a  reservation  on  the 
part  of  Congress  in  the  admission  of  a  State  into  the  Union,  see  the  act  of  July  10, 
1890  (26  Stat.  L.,  222),  admitting  the  State  of  Wyoming. 

'•Jurisdiction  over  territory  in  a  State  may  be  acquired  by  the  United  States,  under 
the  seventeenth  clauseof  section  8  of  Article  I  of  the  Constitution,  by  the  purchaseof 
such  territory,  with  the  consent  of  the  State,  'for  the  erection  of  forts,  magazines, 
arsenals,  dockyards,  and  other  needful  buildings.'  The  Constitution  gives  Congress 
the  power  of  exercising  exclusive  legislation  over  such  place,  and  this  is  held  to 
mean  exclusive  jurisdiction.  The  State's  consent  to  the  purchase  for  any  one  of 
these  constitutional  purposes  invests  the  United  States  with  exclusive  jurisdiction, 
and  the  State  can  not,  even  by  the  express  language  of  its  legislation,  reserve  to 


THE    MILITARY   LAWS    OP   THE   UNITED    STATES.  433 

said  lands,  subdivisions,  and  tracts,  and  each  of  them,  and 
report  their  proceedings  to  the  Secretary  of  the  Interior 
for  his  action  thereon.    If  such  appraisement  be  disap- 
proved, the  Secretary  of  the  Interior  shall  again  cause  the 
said  lands  to  be  appraised  as  before  provided ;  and  when 
the  appraisement  has  been  approved  he  shall  cause  the 
said  lands,  subdivisions,  and  lots  to  be  sold  at  public  sale,  licL8a^8  at  pub" 
to  the  highest  bidder^ for  cash,  at  not  less  than  the  ap-  sajeondition8  of 
praised  value  thereof,  nor  less  than  one  dollar  and  twenty- 
five  cents  per  acre,  first  having  given  not  less  than  sixty 

itself  any  part  of  this  jurisdiction.  (The  reservation  of  the  right  of  serving  process 
for  causes  of  action  arising  outside  such  territory  is  not  held  to  be  an  actual  reser- 
vation of  a  part  of  the  exclusive  jurisdiction  intended  to  be  vested  in  the  United 
States.)  But  it  would  seem  that  this  is  only  true  when  the  purchase  is  for  one  of  the 
constitutional  purposes.  By  correct  construction,  "other  needful  buildings"  would 
mean  buildings  of  the  same  character  as  those  specified — buildings  intended  for 
military  or  defensive  purposes.  A  more  comprehensive  meaning  has,  indeed,  been 
sometimes  given  to.  the  expression,  but  no  justification  for  such  construction  is 
found,  a 
"  Section  355  of  the  Revised  Statutes  is  in  part  based  on  the  clause  of  the  Constitu- 

a  In  Pinckney's  draft  of  a  constitution  there  was  this  clause:  "To  provide  such 
dockyards  and  arsenals  and  erect  such  fortifications  as  may  be  necessary  for  the 
United  States,  and  to  exercise  exclusive  jurisdiction  therein."  (This  draft  was  sub- 
mitted May  29,  1787.) 

There  was  no  corresponding  provision  in  the  Constitution  reported  by  the  com- 
mittee of  detail  (August  6),  but  the  committee  of  eleven,  by  report  of  September  5, 
recommended  the  adoption  of  the  clause  as  it  now  reads,  except  that  it  did  not  have 
the  words  "by  the  consent  of  the  legislature  of  the  State."  In  the  debate  on  the 
proposition  "Mr.  Gerry  contended  that  this  power  might  be  made  use  of  to  enslave 
any  particular  State  by  buying  up  its  territory,  and  that  the  strongholds  proposed 
would  be  a  means  of  awing  the  State  into  an  undue  obedience  to  the  General  Govern- 
ment. Mr.  King  thought  himself  the  provision  unnecessary,  the  power  being 
already  involved;  but  would  move  to  insert,  after  the  word  'purchased,'  the  words 
•by  the  consent  of  the  legislature  of  the  State."  This  would  certainly  make  the 
power  safe."  (5  Elliot's  Debates,  511.) 

And  in  The  Federalist  (No.  43)  it  is  remarked:  "Nor  would  it  be  proper  for  the 
places  on  which  the  security  of  the  entire  Union  may  depend  to  be  in  any  degree 
dependent  on  a  particular  member  of  it." 

So  Story  says  (§  1224) : 

"The  other  part  of  the  power,  giving  exclusive  legislation  over  places  ceded  for 
the  erection  of  forts,  magazines,  etc.,  seems  still  more  necessary  for  the  public  con- 
venience and  safety.  The  public  money  expended  on  such  places,  and  the  public 
property  deposited  in  them,  and  the  nature  of  the  military  duties  which  may  be 
required  there,  all  demand  that  they  should  be  exempted  from  State  authority.  In 
truth,  it  would  be  wholly  improper  that  places  on  which  the  security  of  the  entire 
Union  may  depend  should  be  subjected  to  the  control  of  any  member  of  it.  The 
power,  indeed,  is  wholly  unexceptionable,  since  it  can  only  be  exercised  at  the  will 
of  the  State;  and  therefore  it  is  placed  beyond  all  reasonable  scruple.  Yet  it  did 
not  escape  without  the  scrutinizing  jealousy  of  the  opponents  of  the  Constitution, 
and  was  denounced  as  dangerous  to  State  sovereignty. 

And,  as  observed  by  Judge  Seaman  (in  re  Kelly,  71  Fed.  Rep.,  545, 549) : 

"The  rule  thus  stated,  whereby  legislative  con  sent  operates  as  a  complete  cession, 
is  applicable  only  to  objects  which,  are  specified  in  the  above  provision,  and  can  not 
be  held  to  so  operate,  ipso  facto,  for  objects  not  expressly  included  therein.  Whether 
it  rests  in  the  discretion  of  Congress  to  extend  the  provision  to  objects  not  specific- 
ally enumerated,  although  for  national  purposes,  upon  declaration  as  'needful  build- 
ings,' and  thereby  secure  exclusive  jurisdiction,  is  an  inquiry  not  presented  by  this 
legislation;  and  I  think  it  can  not  be  assumed  by  way  of  argument  that  such  power 
is  beyond  question.  In  New  Orleans  v.  U.  S.,'lO  P'et.,  662,  737,  the  opinion  of  the 
Supreme  Court  is  expressed  by  Mr.  Justice  McLean,  without  dissent,  as  follows :  • 

"  'Special  provision  is  made  in  the  Constitution  for  the  cession  of  jurisdiction 
from  the  States  over  places  where  the  Federal  Government  shall  establish  forts  or 
other  military  works.  And  it  is  only  in  these  places,  or  in  the  Territories  of  the 
United  States,  where  it  can  exercise  a  general  jurisdiction.' 

"And  in  U.  S.  v.  Bevans,  3  Wheat..  336,  390,  the  claim  was  urged  that  the  words 
'other  place'  would  include  a  ship  of  war  of  the  United  States  lying  at  anchor  in 
Boston  Harbor,  and  bring  it  within  the  statute  defining  murder  committed  '  within 
any  fort,  arsenal,  dockyard,  magazine,  or  in  any  other  place  or  district  of  country 
under  the  sole  jurisdiction  of  the  United  States;'  but  it  was  stated  by  the  court, 
through  Chief  Justice  Marshall,  that  'the  construction  seems  irresistible  that  by 
the  words  "other  place "  was  intended  another  place  of  a  similar  character  with  those 
previously  enumerated';  that  'the  context  shows  the  mind  of  the  legislature  to 
have  been  fixed  on  territorial  objects  of  a  similar  character.'  See  also  The  Feder- 
alist, No.  43,  by  Madison." 

.     1919 28 


434  THE   MILITARY    LAWS   OF    THE    UNITED    STATES. 

days'  public  notice  of  the  time,  place,  and  terms  of  sale, 
immediately  prior  to  such  sale,  by  publication  in  at  least 
two  newspapers  having  a  general  circulation  in  the  country 
or  section  of  county  where  the  lands  to  be  sold  are  situate ; 
and  any  lands,  subdivisions,  or  lots  remaining  unsold  may 
be  reoffered  for  sale  at  any  subsequent  time  in  the  same 
manner,  at  the  discretion  of  the  Secretary  of  the  Interior; 
and  if  not  sold  at  such  second  offering  for  want  of  bidders, 
then  the  Secretary  of  the  Interior  may  sell  the  same  at 
private  sale,  for  cash, 'at  not  less  than  the  appraised  value, 
nor  less  than  one  dollar  and  twenty-five  cents  per  acre: 
Provided ,  That  any  settler  who  was  in  actual  occupation 

Rights  of  actu- of  any  portion  of  any  such  reservations  prior  to  the  loca- 
tion of  such  reservation,  or  settled  thereon  prior  to  Jan- 
uary first,  eighteen  hundred  and  eighty-four,  in  good  faith 
for  the  purpose  of  securing  a  home  and  of  entering  the 
same  under  the  general  laws  and  has  continued  in  such 
occupation  to  the  present  time,  and  is  by  law  entitled  to 
make  a  homestead  entry  shall  be  entitled  to  enter  the  land 
so  occupied,  not  exceeding  one  hundred  and  sixty  acres  in 
a  body,  according  to  the  Government  surveys  and  sub- 
divisions: Provided  further,  That  said  lands  were  subject 
to  entry  under  the  public  land  laws  at  the  time  of  their 
withdrawal :  And  provided  further,  That  all  patents  hereto- 
fore issued,  and  approved  State  selections,  covering  any 

Fort Lyon  Mil-  lands  within  the  old  Fort  Lyon  Military  Eeservation,  in 

itary    Reserva-  J  J 

tion-  the  State  of  Colorado,  declared  by  executive  order  of 

August  eighth,  eighteen  hundred  and  sixty-three,  are 

tiersgetc  °f  8et  flereby  confirmed;  and  the  rights  of  all  entrymen  and  set- 
tlers on  said  reservation  to  acquire  title  under  the  home- 
stead, preemption,  or  timber  culture  laws  are  hereby  recog- 
nized and  affirmed  to  the  extent  they  would  have  attached 
had  public  lands  been  settled  upon  or  entered ;  and  such 

tion  referred  to,  and  in  part  not.  The  consent  of  the  State  to  a  purchase,  given  in 
order  to  satisfy  the  requirement  of  this  section,  would  invest  the  United  States 
with  exclusive  jurisdiction,  if  the  purchase  be  for  one  of  the  constitutional  pur- 
poses ;  but  the  section  provides  for  other  purposes  also,  and  as  to  these  it  would  seem 
that  a  simple  consent  to  the  purchase  (assuming  that  such  consent,  being  for  a  pur- 
pose not  falling  under  the  clause  of  the  Constitution,  amounts  to  a  cession  of  juris- 
diction) would  only  carry  with  it  so  much  jurisdiction  as  would  be  necessary  for 
the  purpose  of  the  purchase.  Probably  this  would  be  held  to  be  concurrent  juris- 
diction. Taking  into  consideration  the  fact  that  States  can  not,  under  any  circum- 
stances, interfere  with  the  instrumentalities  of  the  Government  of  the  United  States, 
it  may,  indeed,  be  questioned  whether,  even  under  this  view,  unnecessary  precau- 
tions have  not  been  taken  in  regard  to  the  acquisition  of  jurisdiction ;  and  certainly 
it  can  not  be  presumed  that  a  State  intends  to  part  with  more  of  its  sovereignty 
than  is  necessary.  A  consent  to  the  purchase,  under  section  355,  Revised  Statutes, 
if  the  purchase  be  for  other  than  one  of  the  purposes  described  in  the  clause  of  the 
Constitution,  may,  therefore,  be  accompanied  with  any  limitations  not  interfering 
with  an  instrumentality  of  the  Government  of  the  United  States. 

"The  most  common  way  of  acquiring  jurisdiction,  however,  is  by  the  State's 
expressly  ceding  it  to  the  United  States.  In  such  case  the  State  may  make  similar 
limitations,  and  this  even  if  the  place  be  used  by  the  United  States  for  one  of  the 
purposes  mentioned  in  the  clause  of  the  Constitution.  To  bring  the  case  under  the 
clause  there  must  be  a  purchase  with  consent.  (Fort  Lea  venworth  R.R.  Co.  v,  Lowe, 
114  U.  S.,  539 ;  In  re  Kelly,  71  F.  R.,  545.) "  (J.  A  G.) 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  435 

portions  of  said  reservation  as  shall  not  have  been  entered    P  or  t  ion  8  of 

reservation,  etc.  ; 

or  settled  upon<  as  aforesaid  shall  be  disposed  of  by  the  disposal  of. 
Secretary  of  the  Interior  under  the  provisions  of  this  act, 
including  lands  that  may  be  abandoned  by  settlers  or 
entryraen.     Sec.  2,  ibid. 

SEC.  3.  That  the  Secretary  of  the  Interior  shall  cause  any  of£j?jJJ;i8J™f  J* 
improvements,   buildings,  building  materials,  and  °tneranidecp3^d8ale' 
property  which  may  be  situate  upon  any  such  lands,  sub- 
divisions or  lots  not  heretofore  sold  by  the  United  States    Conditions  of 
authorities,  to  be  appraised  in  the  same  manner  as  herein- 
before provided  for  the  appraisements  of  such  lands,  sub- 
divisions, and  lots,  and  shall  cause  the  same,  together  with 
the  tract  or  lot  upon  which  they  are  situate,  to  be  sold  at 
public  sale,  to  the  highest  bidder  for  cash,  at  not  less  than 
the  appraised  value  of  such  land  and  improvements,  first 
giving  the  sixty  days'  notice  as  hereinbefore  provided;  or 
he  may,  in  his  discretion,  cause  the  improvements  to  be 
sold  separately,  at  public  sale  for  cash,  at  not  less  than 
the  appraised  value,  to  be  removed  by  the  purchaser  within 
such  time  as  may  be  prescribed,  first  giving  the  sixty  days' 
public  notice  before  provided;  and  if  in  any  case  the  lands 
and  improvements,  or  the  improvements  separately,  as  the 
case  may  be,  are  not  sold  for  want  of  bidders,  then  the 
Secretary   of  the  Interior  may,  in  his   discretion,   cause 
the  same  to  be  reoflfered  for  sale,  at  any  subsequent  time, 
in  the  same  manner  as  above  provided,  or  may  cause  the 
same  to  be  sold  at  private  sale  for  not  less  than  the  ap- 
praised value:  Provided,  That  where  buildings  or  improve- 
ments have  been  heretofore  sold  by  the  United   States 
authorities  the  land  upon  which  such  buildings  or  improve-    Lands  to  be 
ments  are  situate  not  exceeding  the  smallest  subdivision  owners  of  rbuiid° 
or  lot  provided  for  by  this  act  upon  the  reservation  on  pavements.1" 
which  said  buildings  are  situate  shall  be  offered  for  sale  to 
the  purchaser  of  said  improvements  and  buildings  at  the 
appraised  value  of  the  lands  and  if  said  purchaser  shall 
fail  for  sixty  days  after  notice  to  complete  said  purchase 
of  lands  the  same  shall  be  sold  under  the  provisions  of 
this  act:  And  provided  further  That  the  proceeds  of  the    Proceeds  of 
military  reservation  lands  sold  on  Bois  Blanc  Island  ndarBoiea<Biano  i£ 
to  Fort  Mackinaw  military  reservation  shall  be  set  apart  foMmproVement 
as  a  separate  fund  for  the  improvement  of  the  National  parkNe?ctlonaI 
Park  on  the  Island  of  Mackinaw  Michigan  under  the  di-    n  stat  '  87' 
rection  of  the  Secretary  of  War.     Sec.  3,  ibid. 

SEC.  4.  That  the  provisions  of  the  act  of  August  eight- 


eenth,  eighteen  hundred  and  fifty-six,  relative  to  military  vations  in 
reservations  in  the  State  of  Florida,  and  the  sixth  section 


436  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  the  act  of  June  twelfth,  eighteen  hundred  and  fifty- 
eight,  relative  to  the  sale  of  military  sites  be,  and  the  same 
are  hereby,  repealed.  Sec.  4,  ibid. 

Lands  contain-     SBC.  5.  Whenever  any  lands  containing  valuable  mineral 
pDo?it8  Subject  to  deposits  shall  be  vacated  by  the  reduction  or  abandonment 
Swseofa  united  of  any  military  reservation  under  the  provisions  of  this  act, 
the  same  shall  be  disposed  of  exclusively  under  the  min- 
eral land  laws  of  the  United  States.     Sec.  5,  ibid. 
Secretary  of     SEC.  6.  The  Secretary  of  War  shall  have  authority,  in  his 
cer'taTn  frfvi-  discretion,  to  permit  the  extension  of  State,  county,  and 
of Sberidges,6Cexn Territorial  roads  across  military  reservations;   to  permit 
etc.8101         ld8'  the  landing  of  ferries,  the  erection  of  bridges  thereon ;  and 
permit  cattle,  sheep  or  other  stock  animals  to  be  driven 
across   such  reservation,  whenever  in  his  judgment  the 
same  can  be  done  without  injury  to  the  reservation  or  in- 
convenience to  the  military  forces  stationed  thereon.     Sec. 
6,  ibid. 

toLen^y.  opened     1212«  That  a11  lands  not  already  disposed  of  included 
Iu2g '  P2310 1894  within  the  limits  of  any  abandoned  military  reservation 
v.  28,  p.  49i.        heretofore  placed  under  the  control  of  the  Secretary  of  the 
Interior  for  disposition  under  the  Act  approved  July  fifth, 
eighteen  hundred  and  eighty-four,  the  disposal  of  which 
has  not  been  provided  for  by  a  subsequent  Act  of  Congress, 
where  the  area  exceeds  five  thousand  acres,  except  such 
legal   subdivisions  as    have    Government    improvements 
thereon,  and  except  also  such  other  parts  as  are  now  or  may 
be  reserved  for  some  public  use,  are  hereby  opened  to  settle- 
ment under  the  public-land  laws  of  the  United  States,  and 
Preferences  to  a  preference  right  of  entry  for  a  period  of  six  months  from 

homestead    set-  . 

tiers.  the  date  of  this  Act  shall  be  given  all  bona  fide  settlers 

who  are  qualified  to  enter  under  the  homestead  law  and 
have  made  improvements  and  are  now  residing  upon  any 
agricultural  lands  in  said  reservations,  and  for  a  period  of 
six  months  from  the  date  of  settlemeat  when  that  shall 
occur  after  the  date  of  this  Act:  Provided,  That  persons 
who  enter  under  the  homestead  law  shall  pay  for  such  lands 

Payments.  no^  jess  than  the  value  heretofore  or  hereafter  determined  by 
appraisement,  nor  less  than  the  price  of  the  land  at  the  time 
of  the  entry,  and  such  payment  may,  at  the  option  of  the 
purchaser,  be  made  in  five  equal  installments,  at  times  and 
at  rates  of  interest  to  be  fixed  by  the  Secretary  of  the 
Interior.  Act  of  August  23,  1894  (28  Stat.  £.,  491). 
Appraisements,  m3t  That  nothing  contained  in  this  Act  shall  be  con- 

sec.2,twd.  strued  to  suspend  or  to  interfere  with  the  operation  of 
the  said  Act  approved  July  fifth,  eighteen  hundred  and 
eighty-four,  as  to  all  lands  included  in  abandoned  military 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  437 

reservations  hereafter  placed  under  the  control  of  the  Sec- 
retary of  the  Interior  for  disposal,  and  all  appraisements 
required  by  the  first  section  of  this  Act  shall  be  in  accord- 
ance with  the  provisions  of  said  Act  of  July  fifth,  eighteen 
hundred  and  eighty-four.  Sec.  2,  ibid. 

1214.  That  the  provisions  of  the  Act  approved  August  ho^ree8fSce8 et° 
twenty-third,  eighteen  hundred  and  ninety-four,  entitled tlers- 

"An  Act  to  provide  for  the  opening  of  certain  abandoned  Z/Q\^ 1895)  v- 
military  reservations,  and  for  other  purposes,"  are  hereby 
extended  to  all  abandoned  military  reservations  which 
were  placed  under  the  control  of  the  Secretary  of  the  Inte- 
rior under  any  law  in  force  prior  to  the  Act  of  July  fifth, 
eighteen  hundred  and  eighty-four.  That  the  preference 
right  of  entry  given  to  actual  settlers  by  the  terms 
of  the  act  to  which  this  is  an  amendment  shall,  so  far 
as  the  lands  to  which  the  provisions  of  said  Act  are 
extended,  take  effect  and  continue  for  six  months  from 
the  date  of  this  amendatory  Act.  Act  of  February  15, 1895 
(28  Stat.  L.,  664). 

LEASES  OF  PUBLIC  PROPERTY  NOT  REQUIRED  FOR 
PUBLIC  USE. 

1215.  That  authority  be,  and  is  hereby,  given  to  the  Sec-    Secretary  «± 

*  ™  i  i  .     •••       ,•      L     MI  T.     *     ^    War  may  lease 

retary  of  Vv  ar,  when  in  his  discretion  it  will  be  for  the  public  property 

public  good,  to  lease,  for  a  period  not  exceeding  five  years  Sse.™ 

and  revocable  at  anytime,  such  property  of  the  United  21^321.' 1892' v' 

States  under  his  control  as  may  not  for  the  time  be  required 

for  public  use  and  for  the  leasing  of  which  there  is  no 

authority  under  existing  law,  and   such  leases  shall  be 

reported  annually  to  Congress:   Provided,  That  nothing 

in  this  act  contained  shall  be  held  to  apply  to  mineral 

or  phosphate  lands.1     Act  of  July  28,  1892  (27  Stat.  L., 

321}. 

1 A  license  is  an  authority,  revocable  at  pleasure,  to  do  a  particular  act  or  series  of 
acts  upon  the  land  of  another  without  possessing  an  estate  therein.  (Morgan  v. 
U.  S.,  14  C.  Cls.  R.,  319.)  See  also  Dig.  J.  A.  Gen.,  476-480. 

The  Constitution  (Art.  IV,  sec.  3,  par.  2)  provides  that  "  The  Congress  shall  have 
power  to  dispose  of,  and  make  all  needful  rules  and  regulations  respecting,  the  ter- 
ritory or  other  property  belonging  to  the  United  States."  The  scope  of  this  provi- 
sion is  most  comprehensive,  the  authority  conferred  thereby  upon  the  legislative 
branch  of  the  Government  being  held  to  extend  from  the  formation  of  a  territorial 
government  to  the  matter  of  the  sale  of  a  small  amount  of  personalty.  That  neither 
land  nor  any  interest  in  land  of  the  United  States  can  be  sold  or  otherwise  disposed 
of  by  the  head  of  an  Executive  Department  or  other  executive  oth'cial,  or  by  a  mili- 
tary'officer,  without  the  authority  of  Congress  is  settled  law. (a) 

In  the  absence  of  such  authority,  the  lands  of  the  United  States,  whether  held  by 
original  proprietorship  or  acquired  by  purchase  or  gift,  or  by  conquest,  can  not,  even 
for  a  purely  benevolent  or  religious  purpose,  be  given  away,  any  more  than  they  can 
be  transferred  for  a  valuable  consideration.  Nor  without  such  authority  can  they 

a  This  fundamental  rule  of  our  public  law  is  expressed  by  Attorney- General  Hoar 
(13  Opins.,  46)  as  follows:  "I  am  clearly  of  opinion  that -the  Secretary  of  War  can 
not  convey  to  any  person  any  interest  in  land  belonging  to  the  United  States,  except 
in  pursuance  of  an  act  of  Congress  expressly  or  impliedly  authorizing  him  to  do  so." 
And  see  United  States  v.  Nichols,  1  Paine,  646  (cited  post) ;  Seabury  v.  Field,  McAl- 
lister, 1;  United  States  v.  Hare,  4  Sawyer,  653,  669. 


438 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


MILITARY  POSTS. 


Par. 

1216.  Permanent  barracks. 

1217.  No  contract  to  exceed  appro- 

priation. 

1218.  Expenditures  exceeding  $500 

to  be  made  by  contract. 

1219.  Trading  establishments. 

1220.  Post  traders. 


Par. 

1221.  Vacancies  not  to  be  rilled. 

1222.  Post  schools. 

1223.  Post  bakeries. 
J224.  Post  exchanges. 

1225.  Sale  of  alcoholic  liquors  re- 
stricted. 


1216.  Permanent  barracks  or  quarters  and  buildings  and 
sec.ii36,R.s.  structures  of  a  permanent  nature  sliall  not  be  constructed 
unless  detailed  estimates  shall  have  been  previously  sub- 
mitted to  Congress,  and  approved  by  a  special  appropria- 
tion for  the  same,  except  when  constructed  by  the  troops; 
and  no  such  structures,  the  cost  of  which  shall  exceed 
twenty  thousand  dollars,  shall  be  erected  unless  by  special 

be  conveyed  temporarily  by  lease,  whether  for  a  short  or  long  term,  (a)  (Dig.  J.  A. 
Gen.,  623,  par.  1.) 

Nor,  without  authority  from  Congress,  can  an  Executive  Department  or  officer  con- 
vey away  any  usufructuary  interest  in  land  of  the  United  States.  Thus  it  has  been 
repeatedly  held  by  the  Judge- Advocate-General  that  the  Secretary  of  War  (or  a 
military  commander)  was  not  empowered,  of  his  own  authority,  to  grant  a  right  of 
way  over  a  military  reservation  to  a  railroad  company  or  other  corporation,  and  in 
numerous  statutory  enactments  such  a  right  has  been  expressly  given  by  Congress 
as  the  only  authority  competent  for  the  purpose. 

And  such  rights  when  given  can  be  exercised  only  within  the  terms  of  the  grant. 
Thus  where  by  an  act  of  Congress  there  was  granted  to  a  railroad  company  a  limited 
and  defined  right  of  way  across  a  military  reservation  (occupied  by  a  military  post), 
held  that  the  company  was  authorized  simply  to  construct  a  track  or  roadway,  and 
was  not  empowered  to  put  up  depots,  stock  yards,  cattle  pens,  or  other  erections 
upon  the  land,  or  to  appropriate  land  otherwise  than  for  the  roadway. (b) 

So  held  that  the  Secretary  of  War  could  not,  of  his  own  authority,  grant,  in  consid- 
eration of  the  payment  of  toll  to  the  United  States,  a  right  of  way  over  a  bridge  be- 
longiug  to  the  United  States.  So  held  that  the  Secretary  could  not  legally  grant  to  a 
company  or  individual  the  right  to  erect  and  maintain  for  an  indefinite  period  a  hotel 
on  the  military  reservation  at  Sandy  Hook.(c)  So  held  that  the  Secretary  would 
not  be  authorized  to  transfer  a  lot  belonging  to  the  United  States  in  Washington  to 
the  Commissioners  of  the  District  of  Columbia  for  the  erection  of  a  hospital.  So 
held  that  neither  the  Secretary  of  War  nor  a  department  commander  could  grant  to 
an  individual  or  individuals  the  exclusive  right  to  use  for  an  indefinite  period  certain 
water  power  belonging  to  the  United  States,  nor  the  exclusive  right  to  mine  the  soil 
of  a  military  reservation  for  a  certain  term  of  years,  nor  a  similar  right  to  make  and 
maintain  for  an  indefinite  period  ditches  through  a  portion  of  such  a  reservation  for 
the  purpose  of  irrigating  the  lands  of  private  parties,  nor  the  right  annually  to  enter 
upon  and  occupy  a  military  reservation  and  cut  and  possess  the  hay  crop  growing 
thereon,  (d)  nor  the  right  permanently  or  indefinitely  to  occupy  and  use  a  portion  of 
a  reservation  for  a  burying  ground.  (Ibid.,  624.) 

Held,  however,  that  a  distinction  was  to  be  observed  between  a  grant  of  a  usu- 
fructuary interest  in  land  and  a  revocable  license  not  involving  a  transfer  of  such 

a  See  Friedman  v.  Goodwin,  1  McAllister,  148,  where  a  lease  made  by  the  post 
commander  at  San  Francisco  of  a  part  of  a  "  Government  reserve, "  though  approved 
by  the  military  governor  of  the  then  Territory,  and  also  by  the  Secretary  of  the 
Interior,  was  held  void  because  not  authorized  by  Congress.  The  court  declares  the 
"utter  impotency  of  any  attempt  by  an  officer  of  the  Government  to  alien  any  land, 
the  property  of  the  United  States,  without  the  authority  of  an  act  of  Congress;" 
adding  that  "the  President  with  the  heads  of  the  Departments  combined"  could 
not  effect  such  an  object.  And  see  4  Opins.  Att.  Gen.,  480;  9  ibid.,  476;  13  ibid.,  46; 
United  States  v.  Hare,  4  Sawyer,  670-671.  In  the  last  case  the  court  say:  "The 
Secretary  of  the  Treasury  can  not  execute  or  approve  of  a  lease  of  any  property  be- 
longing to  the  United  States  without  special  authority  of  law." 

6  See  this  opinion  affirmed  by  the  Attorney-General  in  14  Opins.,  135. 

c  See  confirmatory  opinion  of  the  Attorney-General  in  16  Opins.,  205.  In  this  case 
there  was  the  further  objection  that  the  State  of  New  Jersey,  in  ceding  to  the  United 
States  jurisdiction  over  the  premises,  by  deed  of  March  10,  1846,  had  expressly  de- 
clared that  the  grant  was  " for  military  purposes ;"  adding  "and  the  said  United 
States  shall  retain  such  jurisdiction  so  'long  as  the  said  tract  shall  be  applied  to  the 
military  or  public  purposes  of  the  said  United  States,  and  no  longer." 

d  A  fortiori  in  regard  to  growing  timber.  See  Spencer  v.  United  States,  10  C. 
Cls.B.,255. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  439 

authority  of  Congress.  It  shall  be  the  duty  of  all  officers 
of  the  United  States  having  any  of  the  title-papers  (prop-  Title  japers. 
erty  purchased,  or  about  to  be  purchased,  for  erection  of 
public  buildings)  in  their  possession,  to  furnish  them  forth- 
with to  the  Attorney-General.  ISTo  public  money  shall  be 
expended  until  the  written  opinion  of  the  Attorney-General 
shall  be  had. 

1217.  No  contract  shall  be  entered  into  for  the  erection.    NO  contract  to 

n         .    ,  .  j,  ,  ,.       ,      .,  ,.  exceed  appropri- 

repair,  or  furnishing  of  any  public  building,  or  for  anyation. 
public  improvement  which  shall  bind  the  Government  to  233.V  3,°v.  is,'p! 
pay  a  larger  sum  of  money  than  the  amount  in  the  Treasury    see.  3733,  R.  s. 
appropriated  for  the  specific  purpose.1 

1218.  That  hereafter  no  expenditures  exceeding  five  hun-  excSIS 
dred  dollars  shall  be  made  upon  any  building  or  military  23Jp.1ii 1 1  Fe 
post,2  or  grounds  about  the  same,  without  the  approval  Of1893»v-27,p. 
the  Secretary  of  War  for  the  same,  upon  detailed  estimates 


an  interest,  (a)  Thus  held  that  the  Secretary  of  War  would  be  authorized  to  permit  a 
telegraph  company  to  erect  posts  upon  a  military  reservation  and  attach  to  the  same 
telegraph  wires,  subject  to  their  being  removed  at  the  will  of  the  Government,  it 
found  to  interfere  with  the  purposes  for  which  the  reservation  was  established.  So 
held  that  a  municipal  corporation  might  legally  be  permitted  by  the  Secretary  of 
War  to  lay  water  pipes  in  the  soil  of  the  arsenal  grounds  at  Springfield,  Mass.,  the 
same  being  equally  for  the  benefit  of  the  military  authorities  and  the  citizens,  and 
subject  to  removal  at  the  will  of  the  Government.  And  held  that  a  post  trader  might 
legally  be  licensed  by  the  Secretary  of  War  to  erect  the  buildings  necessary  for  his 
business  upon  the  land  of  the  post  forwhich  he  was  appointed,  (b)  But  held  thatthe 
Secretary  of  War  was  not  empowered  to  accede  to  the  application  of  an  individual  to 
establish  a  ferry  across  a  river  within  the  limits  of  a  military  reservation,  where 
what  was  asked  was  not  a  mere  license  revocable  at  the  will  of  the  Secretary,  but  a 
permanent  franchise  and  grant  of  an  exclusive  usufructuary  interest  in  the  prem- 
ises, including  even  the  right  to  charge  tolls  to  the  United  States.  And  similarly 
held  in  a  case  of  an  application  to  be  permitted  to  erect  and  maintain  a  permanent 
bridge  across  a  river  forming  a  boundary  of  a  military  reservation,  one  end  of  which 
was  to  be  built  upon  the  soil  of  the  reservation,  the  application  contemplating  not  a 
mere  license  revocable  at  the  will  of  the  Government,  but  a  permanent  right  of 
property  in  the  bridge,  involving  an  easement  in  the  land.  (Ihid.,  625.) 
1  The  custody  of  a  public  buildi 


ling,  in  the  absence  of  a  statute,  an  appropriation,  a 
regulation,  or  the  order  of  the  head  of  an  Executive  Department,  is  vested  in  the 
officer  having  it  in  his  official  possession.  (Gray  v.  U.  S.,  23  C.  Cls.  R.,  323.) 

2  A  military  station  is  merely  synonymous  with  the  term  "military  post,"  and 
means  a  place  where  troops  are  assembled ;  where  military  stores,  animate  and  inan- 
imate, are  kept  and  distributed ;  where  military  duty  is  performed  or  military  pro- 
tection afforded;  where  something,  in  short,  more  or  less  closely  connected  with 
arms  or  war  is  kept  or  ia  to  be  done.  (Phisterer  v.  U.  S.,  12  C.  Cls.  K.,  98, 107.) 


Permanent  military  posts  are  established  under  the  direction  of  the  Secretary  of 
War,  by  whom  their  names  will  be  designated.  (Par.  198,  A.  R.,  1895.) 

Permanent  posts  will  be  styled  "Forts,"  and  points  occupied  temporarily  by 
troops,  "Camps."  (Par.  199, ibid.) 

The  commander  of  a  post  is  responsible  for  its  safety  and  defense,  and  for  the 
discipline,  drill,  and  tactical  instruction  of  his  command,  to  which  ends  all  other 
garrison  duties  will  be  made  subservient.  He  will  be  responsible  for  the  preserva- 
tion and  proper  application  of  public  property,  for  the  strict  enforcement  of  laws 
and  regulations,  and  for  the  proper  condition  of  quarters  and  defenses.  He  will 
make  an  inspection  of  his  command  on  the  last  day  of  every  month,  will  satisfy 
himself  by  frequent  personal  examination  that  the  disbursements  of  all  officers  in 
charge  of  funds  are  in  accordance  with  law  and  regulations  and  their  accounts  cor- 
rectly stated,  and  will  make  such  reports  of  these  inspections  and  examinations  as 
the  department  commander  may  direct.  (Par.  200,  ibid.) 

The  staff  of  a  post  commander  will  consist  of  such  staff  officers  as  are  on  duty  at 
the  post  and  such  line  officers  as  may  be  required  for  staff  duties.  Their  official 
designations  will  be  as  follows:  Adjutant,  quartermaster,  commissary,  surgeon, 

a  See  this  distinction  recognized  in  opinions  of  the  Attorney-General  of  October  1 
and  "November  22,  1878  (16  Opins.,  152,  205),  in  the  former  of  which  it  was  held  that 
the  Secretary  of  the  Navy  was  not  empowered  to  authorize  the  city  of  Chelsea, 
Mass.,  to  continue  one  of  its  main  sewers  through  the  grounds  of  the  United  States 
Naval  Hospital. 

6  See  14  Opin.  Att.  Gen.,  125.    • 


440  THE    M-ILITARY    LAWS    OF    THE    UNITED    STATES. 

by  the  Quartermaster's  Department;  and  the  erection,  con- 
struction, and  repair  of  all  buildings  and  other  public 
structures  in  the  Quartermaster's  Department  shall,  as  far 
as  may  be  practicable,  be  made  by  contract,  after  due  legal 
advertisement.1  Act  of  February  27, 1893  (27  Stat.  L.,  484). 

POST   TRADERS. 

Trading  estab-     1219.  The  Secretary  of  War  is  authorized  to  permit  one 

lishments. 

July  15, 1870,  c.  or  more  trading  establishments  to  be  maintained  at  any 

294  s  22  v.  16,  p. 

319'.  military  post  on  the  frontier  not  in  the  vicinity  of  any  city 

'  or  town,  when  he  believes  such  an  establishment  is  needed 

for  the   accommodation  of  emigrants,  freighters,  or  other 

citizens.    The  persons  to  maintain  such  establishments 

shall  be  appointed  by  him,  and  shall  be  under  protection 

and  control  as  camp-followers.2 

Iect3tIjSir824      1220.  That  every  military  post  may  have  one  trader,  to 

1876,  v. i9,  p.  ioo.'  be  appointed  by  the  Secretary  of  War,  on  the  recommenda- 
tion of  the  council  of  administration,  approved  by  the  com- 
manding officer  who  shall  be  subject  in  all  respects  to  the 

assistant  surgeon,  engineer  officer,  ordnance  officer,  and  signal  officer.  (Par.  203, 
ibid.) 

The  official  address  of  the  senior  medical  officer  at  a  post  will  be — 

The  Surgeon,  Fort , 

and  in  like  manner  the  official  addresses  of  the  other  staff  officers  of  a  post  will  be, 
respectively:  The  Adjutant,  The  Quartermaster,  The  Commissary  The  Engineer 

Officer,  The  Ordnance  Officer    and  The  Signal  Officer,  Fort — — .     (Dec.  Act. 

Sec.  War,  Dec.  11, 1895.     29456  A.  G.  O.,  1895.    Circular  No.  2,  A.  G.  0.,  1896.) 

Expenditures  of  labor,  money,  or  material  upon  posts  will  be  strictly  limited  to 
the  amounts  allowed  by  law  and  regulations.  (Par.  204,  A.  R.,  1895.) 

When  practicable,  temporary  buildings  for  the  use  of  the  Army  will  be  erected  by 
its  enlisted  force,  and  necessary  repairs  of  public  buildings  at  garrisoned  posts  not 
appropriated  for  or  specially  authorized  will  be  made  by  the  troops.  (Par.  205, 
ibid.) 

In  case  of  emergency,  when  reference  to  higher  authority  is  impracticable,  depart- 
ment commanders  may  order  the  purchase  of  material  and  engagement  of  services 
necessary  for  the  preservation  of  public  buildings  or  property,  not  to  exceed  in 
amount  $500  for  any  post,  but  no  greater  sum  will  be  expended  without  the  sanction 
of  the  Secretary  of  War.  ( Par.  206,  ibid. ) 

Post  commanders  are  authorized  to  assist  mail  contractors  with  Government 
transportation,  provided  it  can  Le  spared  without  detriment  to  the  service,  when 
through  accident  or  unavoidable  casualty,  they  are  deprived  of  the  means  necessary 
to  fulfill  their  contracts  Such  assistance  must  cease  as  soon  as  the  contractor  can 
by  exercise  of  proper  diligence,  resupply  himself  with  transportation.  Rece'pts 
for  the  property  loaned  will  be  taken,  which  in  the  event  of  its  loss  or  damage  will 
be  forwarded,  with  a  report  of  facts,  to  the  Adjutant- General  of  the  Army,  tha  the 
amount  involved  may  be  collected  from  the  contractor  through  the  Post-Office  De 
partment.  (Par.  207,  ibid,) 

At  posts  supplied  with  ordnance  and  with  ammunition  for  the  purpose,  a  morning 
and  evening  guu  will  be  fired  daily  at  reveille  and  retreat.  (Par.  208,  ibid.) 

POST  RECORDS. 

The  following  books  of  record  will  be  kept  at  each  post :  An  order  book,  a  letters- 
received  book,  an  index  book  for  letters  received,  a  letters-sent  book,  an  index  book 
for  letters  sent,  a  post  council  of  administration  book,  furnished  by  the  Quarter- 
master's Department ;  a  morning  report  book,  and  a  guard  report  book,  furnished 
by  the  Adjutant-General  of  the  Army;  a  post  exchange  council  book,  provided  by 
the  post  exchange.  All  copies  of  all  returns  and  reports  rendered,  if  not  contained 
in  the  book  of  orders  received,  letters  sent,  all  letters  received  which  are  not  required 
to  be  returned ;  in  fine,  all  official  papers  which  relate  to  post  administration,  and 
which  are  required  to  be  kept  at  the  post,  will  De  filed  and  preserved  as  a  part  of 
the  post  records.  The  records  will  not  be  removed  from  the  post  except  on  its  dis- 
continuance. Commanding  officers  will  see  that  the  records  are  accurately  kept  and 
are  properly  transferred  to  their  successors.  (Par.  209,  ibid.) 

1  This  provision  was  repeated  in  the  annual  acts  of  appropriation  from  that  of  July 
5,  1884,  to  that  of  February  27,  1893  (27  Stat.  L.,  484). 

2  But  see  paragraph  1221,  post,  for  the  requirement  of  the  act  of  January  28,  1893, 
that  t  raderships,  as  they  become  vacant,  are  not  to  be  filled. 


THE    MILITARY   LAWS    OP   THE    UNITED    STATES.  441 

rules  and  regulations  for  the  government  of  the  Army.1 
Sec.  3,  act  of  July  24, 1876  (19  Stat.  L.,  100). 

1221.  That  where  a  vacancy  now  exists  or  hereafter    vacancies  not 
occurs  in  the  position  of  post  trader  at  any  military  post  it  °jan.  28,i893,v. 
shall  not  be  filled,  and  the  authority  to  make  such  appoint- 27' p' 426' 
ment  is  hereby  terminated :  Provided,  That  in  the  event  ot 

the  death  of  a  post  trader  his  personal  representative  shall 
be  allowed  by  the  Secretary  of  War  a  reasonable  time  in 
which  to  close  the  business.  Act  of  January  28,  1893  (27 
Stat.  L.,  426). 

POST   SCHOOLS. 

1222.  Schools  shall  be  established  at  all  posts,  garrisons.    Post  schools. 

I-          j      •         Sec.  27,  July  28, 

and  permanent  camps  at  which  troops  are  stationed,  in  ISM,  v.u,  p.  336. 
which  the  enlisted  men  may  be  instructed  in  the  common 
English  branches  of  education,  and  especially  in  the  his- 
tory of  the  United  States ;  and  the  Secretary  of  War  may 
detail  such  officers 2  and  enlisted  men  as  may  be  necessary 
to  carry  out  this  provision.  It  shall  be  the  duty  of  the 
post  or  garrison  commander  to  set  apart  a  suitable  room 
or  building  for  school  and  religious  purposes. 

POST   BAKERIES. 

1223.  That  for  the  current  fiscal  year  and  thereafter  there 
may  be  expended  from  the  appropriation  for  regular  sup- 
plies  the  amounts  required  for  the  necessary  equipments 26>  p- 152< 
of  the  bake-house  to  carry  on  post  bakeries;  for  the  neces- 
sary furniture,  text- books,  paper  and  equipments  of  the 

post  schools;  for  the  tableware  and  mess  furniture  for 
kitchens  and  mess  halls ;  *  *  *  each  and  all  for  use  of 
the  enlisted  men  of  the  Army.3  Act  of  June  30,  1890  (26 
Stat.  L.,  152). 

POST  EXCHANGES. 

1224.  That  hereafter  no  money  appropriated  for  the  sup-   Postexchanges 

v    andpostgardens. 

port  of  the  Army  shall  be  expended  for  post  gardens  or  July  ie,  1392,  v. 
exchanges ;  but  this  proviso  shall  not  be  construed  to  pro- 
hibit the  use,  by  post  exchanges,  of  public  buildings  or 
public  transportation  when,  in  the  opinion  of  the  Quarter- 
master General,  not  required  for  other  purposes.  Act  of 
July  16,  1892  (27  Stat.  L.,  178). 

'But  see  paragraph  1221,  post,  for  the  requirement  of  the  act  of  January  28,  1893, 
that  traderships,  as  they  become  vacant,  are  not  to  be  filled. 

2For  statutory  duties  of  post  and  regimental  chaplains  in  respect  to  post  schools  see 
the  chapter  entitled  POST  CHAPLAINS.  For  regulations  in  regard  to  post  schools 
see  paragraphs  317-324,  Army  Regulations  of  1895.  For  provisions  of  statutes 
respecting  text-books,  supplies  of  paper,  etc.,  see  paragraph  1223,  post. 

3For  regulations  in  respect  to  the  management  and  administration  of  post  baker- 
ies see  paragraphs  304-309,  Army  Regulations  of  1895. 


442  THE   MILITARY  LAWS   OF   THE   UNITED   STATES. 

Uquoersf  aet?h°"ec     1225i  Tnat  no  alcotlolic  liquors,  beer  or  wine,  shall  be  sold 
stricted.  or  supplied  to  the  enlisted  men  in  any  canteen,  or  post 

June  13, 1890,  v.  m 

26,  p.  154.  trader's  store,  or  in  any  room  or  building  at  any  garrison  or 

military  post,  in  any  State  or  territory  in  which  the  sale  of 
alcoholic  liquors,  beer  or  wine  is  prohibited  by  law.1  Act 
of  June  13,  1890  (26  Stat.  L.,  154}. 

i  It  was  held  by  the  United  States  circuit  court  in  and  for  the  district  of  Nebraska 
(In  re  Ladd ;  74  Fed.  Rep.,  31,  decided  in  May,  1896)  that  the  State  of  Nebraska  was 
without  jurisdiction  to  enforce  an  excise  law  of  the  State  (act  of  March  29,  1889)  in 
and  upon  the  military  reservation  of  Fort  Robinson,  Nebr. ;  jurisdiction  over  the 
same  having  been  ceded  to  the  United  States  in  March,  1887. 

The  post  exchange  (formerly  the  canteen)  is  an  association,  or  soldiers'  club,  own- 
ing and  operating  a  cooperative  store.  It  is  not,  and  never  was,  in  any  sense  a 
trader  within  the  meaning  of  the  acts  of  July  24,  1876,  and  June  30,  1882,  and  has  no 
lien  on  the  soldier's  pay.  The  accounting  officers  have  no  duty  to  perform  in  con- 
nection with  the  claims  or  accounts  of  any  post  exchange,  unless  they  are  involved 
in  the  improper  disbursement  of  Government  funds.  (2  Compt.  Dec.,  56.) 


CHAJPTER    XXXIII. 


THE  PUBLIC  PROPERTY. 


Par. 

1226.  Power  to   acquire  and  dis- 

pose of  property  vested  in 
Congress. 

1227.  Purchase,     safe-k  e  e  p  i  n  g , 

transportation,  and  distri- 
bution of  supplies. 

1228.  Captured   stores  to  be    se- 

cured. 

1229.  Accountability  of  company 

commanders. 

1230.  Property    returns.     Certifi- 

cates of  loss  to  be  for- 
warded to  Treasury  ac- 
counting officers. 

1226.  The  Congress  shall  have  power  to  dispose  of  and    power  to  ac- 
make  all  needful  rules  and  regulations  respecting  the  ter- 
ritory or  other  property  belonging  to  the  United  States.1  ^essd 
Constitution,  Art.  IV,  sec.  3. 


Par. 

1231.  Contents  of  certificate. 

1232.  Methods  of  making  returns 

not  affected. 

1233.  Regulations  by  heads  of  De- 

partments. 

1234.  Deficiencies. 

1235.  Damage  to  arms. 

1236.  Sales  of  stores. 

1237.  Administration  of  oaths  in 

accounting. 


Art.  IV,  sec.  3, 
Constitution. 


'See  note  to  paragraph  1215,  ante. 

The  provision  of  the  Constitution  in  regard  to  the  disposition  of  public  property 
applies  to  personalty  equally  as  to  realty.  Thus  no  Executive  Department  or  officer 
can  be  empowered,  except  by  the  authority  of  Congress,  to  dispose  of  personal 
property  of  the  United  States,  (a)  So,  held  that,  in  the  absence  of  such  authority,  a 
military  commander  could  not  legally  dispose  of  temporary  buildings — not  "fix- 
tures "—erected  upon  a  military  reservation.  So,  held  that  the  Secretary  of  War 
would  not  be  authorized,  in  the  absence  of  enabling  legislation,  to  sell  or  negotiate 
the  bonds  or  promissory  notes  made  to  the  United  States  by  certain  railroad  com- 
panies, in  consideration  of  rolling  stock,  etc.,  sold  and  transferred  to  the  same.  And 
similarly  held  as  to  the  authority  of  the  Secretary  to  dispose  of  articles  of  inferior 


ity.  Held  that  the  Cavalry  Tactics,  a  work  prepared  under  the  orders  of  the  Secre. 
tary  of  War  by  a  board  of  officers,  was  the  property  of  the  United  States,  and  there" 
fore  could  not,  without  the  authority  of  Congress,  be  disposed  of  to  a  bookseller 

a  The  leading  case  on  this  point  is  United  States  t>.  Nichols,  1  Paine  (U.  S.  Circ' 
Ct.  K.,  640),  in  which  it  was  held  that  a  sale  or  loan,  by  the  commandant  of  an  arsenal' 
of  a  quantity  of  lead  belonging  to  the  United  States  was  illegal  and  invalid.  The 
court  say:  "The  Constitution  declares  that  'Congress  shall  have  power  to  dis- 
pose of  and  make  all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.'  Xo  public  property  can  therefore  be  dis- 
posed of  without  the  authority  of  law,  either  by  an  express  act  of  Congress  for  that 
purpose  or  by  giving  the  authority  to  some  Department  or  subordinate  agent.  No 
law  has  been  shown  authorizing  the  sale  of  this  lead,  nor  is  any  such  authority  to 
be  inferred  from  the  general  power  vested  in  any  of  the  Departments  of  the  Govern- 
ment. The  power,  if  lodged  anywhere,  would  seem  most  appropriately  to  belong 
to  the  War  Department;  but  there  is  no  such  express  or  implied  power  in  that 
Department  to  sell  the  public  property  put  under  its  management."  And  see  the 
same  principle  recognized  in  an  opinion  of  the  Attorney-General  (in  16  Opins.,  477), 
in  which  it  is  held  that  the  Secretary  of  War  was  not  empowered  to  sell  arms  to  a 
State  in  the  absence  of  authority  from  Congress. 


443 


444  THE   MILITARY   LAWS   OP   THE   UNITED    STATES. 

Purchase,  safe-     1227.  The  Secretary  of  War  shall  from  time  to  time  de- 
portation,  and  fine  and  prescribe  the  kinds  as  well  as  the  amount  of  sup- 
su^iies. 1C        plies  to  be  purchased  by  the  Subsistence  and  Quartermaster 
48,  8a5,V3>2*p.  si?".  Departments  of  the  Army,  and  the  duties  and  powers 
Sec.2i9,R.s.  tnereof  respecting  such  purchases  j  and  shall   prescribe 
general  regulations  for  the  transportation  of  the  articles  of 
supply  from  the  places  of  purchase  to  the  several  armies, 
garrisons,  posts,  and  recruiting  places,  for  the  safe-keeping 
of  such  articles,  and  for  the  distribution  of  an  adequate 
and  timely  supply  of  the  same  to  the  regimental  quarter- 
masters, and  to  such  other  officers  as  may  by  virtue  of  such 
regulations  be  intrusted  with  the  same;  and  shall  fix  and 
make  reasonable  allowances  for  the  store-rent  and  storage 
necessary  for  the  safe- keeping  of  all  military  stores  and 
supplies.1 
captured  stores     1228.  All  public  stores  taken  from  the  enemy  shall  be 

to  be  secured.  ____    .       ,   _  n    _ 

9  Art.  war.  secured  for  the  service  of  the  United  States;  and  for  neg- 
lect thereof  the  commanding  officer  shall  be  answerable. 
Ninth  Article  of  War. 

with  a  view  to  its  publication  and  sale  by  him  on  his  private  account.  (Dig.  J.  A. 
Gen.,  626,  par.  4.) 

Held  that  the  provision  of  section  3618,  Revised  Statutes— requiring  that  "all 
proceeds  of  sales  of  old  material,  condemned  stores,  supplies,  or  other  public  prop- 
erty of  any  kind,"  shall,  with  certain  exceptions  specified,  be  deposited  and  covered 
into  the  Treasury  as  miscellaneous  receipts,  and  not  withdrawn  except  by  the 
authority  of  a  statutory  appropriation— applied  to  the  proceeds  of  the  surplus  cut- 
tings of  material  for  clothing  manufactured  by  the  Quartermaster  Department  of 
the  Army,  the  same  not  being  within  any  of  the  designated  exceptions ;  and  there- 
fore that  the  proceeds  of  such  cuttings  could  not  legally  be  retained  and  used  in  the 
business  of  that  department.  (Ibid.,  630,  par.  13.) 

Temporary  buildings  only  erected  by  military  orders  on  land  of  the  United  States 
at  a  military  post,  to  serve  a  temporary  purpose,  are  in  general  personal  property  of 
the  United  States  which  may  be  removed  by  the  direction  or  authority  of  the  Sec- 
retary of  War. (a)  But  if  the  same  be  permanent  structures  and  real  estate,  the 
authority  of  Congress  is  necessary  to  their  removal.  (Ibid.,  631,  par.  19.) 

The  United  States,  being  tenant  of  land  leased  for  military  purposes  at  Fort  Davis, 
Tex.,  erected  buildings  thereon  for  the  purposes  of  a  military  post.  In  view  of  the 
fact  that  the  relation  was  that  of  landlord  and  tenant,  that  the  buildings  were 
erected  for  a  purpose  analogous  to  that  of  trade,  and  for  a  public  use,  and  that  in 
their  erection  there  could  certainly  have  been  no  intention  to  benefit  the  inheritance 
or  add  to  the  freehold— held  that  such  buildings  were  to  be  regarded,  not  as  fixtures, 
but  as  personal  property,  and  removable  by  the  tenant  at  any  time  before  the  expira- 
tion of  his  lease.  Should  the  Government  sell  the  buildings  standing,  the  purchaser 
would  have  the  same  right  of  disposition  as  the  United  States,  and  no  more.  He 
would  therefore  be  obliged  to  remove  them  before  the  termination  of  the  lease,  unless 
otherwise  permitted  by  the  owner  of  the  premises.  And  held  similarly  of  like  build- 
ings erected  at  Fort  Union,  N.  Mex.,  where  the  United  States  was  tenant  at  will; 
the  buildings  not  being  intended  as  improvements,  but  merely  for  the  use  of  the 
troops.  (Ibid.,  632,  par.  20.) 

Where  a  post  commander,  without  authority,  took  possession  of  land  of  the  United 
States  for  the  purpose  of  erecting  thereon  a  buildine  for  his  personal  use,  and  having 
erected  it  assumed  to  hold  and  dispose  of  it  as  his"  own  properey,  held  that  his  act 
was  unauthorized  and  illegal,  and  that  he  acquired  no  legal  estate  in  the  building. 
And  similarly  held  where,  without  authority,  he  permitted  an  enlisted  man  of  his 
command  to  use  land  of  the  United  States  for  the  erection  thereon  of  a  dwelling  and 
to  hold  and  dispose  of  such  dwelling  as  his  own  property.  (Ibid.,  par.  21.) 

Wood  growing  on  a  military  reservation  is  the  property  of  the  United  States.  So, 
held  that  a  contractor  who  cut  such  wood  to  fill  a  contract  made  by  him  with  the 
United  States  to  furnish  wood  to  a  military  post  could  npt  legally  be  allowed  to 
remove  or  dispose  of  the  same  as  his  own  property,  and  advised  that  he  be  paid 
merely  for  the 'cutting.  (Ibid.,  par.  22.) 

1  For  statutory  provisions  respecting  the  procurement  of  property  and  supplies, 
see  the  chapters  entitled  CONTRACTS  AND  PURCHASES,  and  THE  STAFF  DEPARTMENTS. 
For  provisions  respecting  the  acquisition  of  lands  by  the  United  States,  see  the 
chapter  entitled  THE  PUBLIC  LANDS.  See  also  paragraphs  703-707,  inclusive,  Army 
Regulations  of  1895. 

oBut  such  buildings  can  not  be  sold  without  the  authority  of  Congress.  (Lear  v. 
U.S.,  50  Fed.  Rep.,  65.) 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  445 

1229.  Every  officer  commanding  a  troop,  battery,  or  com- 
pany,  is  charged  with  the  arms,  accoutrements,  ammuni- 
tion,  clothing,  or  other  military  stores  belonging  to  his 
command,  and  is  accountable  to  his  colonel  in  case  of  their 
being  lost,  spoiled,  or  damaged  otherwise  than  by  unavoid- 
able accident,  or  on  actual  service.1     Tenth  Article  of  War. 

PROPERTY  ACCOUNTABILITY. 

1230.  That  instead  of  forwarding  to  the  accounting  offi-  tu^nrsoperty  re* 
cers  of  the  Treasury  Department  returns  of  public  prop-    certificates  of 

r    loss  to  be   for- 

erty  entrusted  to  the  possession  of  officers  or  agents,  the  warded  to  Treas- 

~  ,-,  ,       „   o,  ury     accounting 

Quartermaster-General,  the  Commissary-General  of  Sub-  officers. 
sistence,  the  Surgeon-General,  the  Chief  of  Engineers,  the28,pa47. 
Chief  of  Ordnance,  the  Chief  Signal  Officer,  the  Paymaster 
General  of  the  Navy,  the  Commissioner  of  Indian  Affairs, 
or  other  like  chief  officers  in  any  Department,  by,  through, 
or  under  whom  stores,  supplies,  and  other  public  property 
are  received  for  distribution,  or  whose  duty  it  is  to  receive 
or  examine  returns  of  such  property,  shall  certify  to  the 
proper  accounting  officer  of  the  Treasury  Department,  for 
debiting  on  the  proper  account,  any  charge  against  any 
officer  or  agent  intrusted  with  public  property,  arising  from 
any  loss,  accruing  by  his  fault,  to  the  Government  as  to  the 
property  so  intrusted  to  him.     Sec.  1,  act  of  March  29,  1894 
(28  Stat.  L.,  47). 

1231.  That  said  certificate  shall  set  forth  the  condition  of  contents  of  cer- 

tificate. 
such  officer's  or  agent's  property  returns,  that  it  includes    sec.2,i&id. 

all  charges  made  up  to  its  date  and  not  previously  certified, 
that  he  has  had  a  reasonable  opportunity  to  be  heard  and 
has  not  been  relieved  of  responsibility;  the  effect  of  such 
certificate,  when  received,  shall  be  the  same  as  if  the  facts 
therein  set  forth  had  been  ascertained  by  the  accounting 
officers  of  the  Treasury  Department  in  accounting.  Sec.  2, 
ibid. 

1232.  That  the  manner  of  making  property  returns  to  or    Methods  of 


in  any  administrative  bureau  or  department,  or  of  ascer-  Sc       affected'. 
taining  liability  for  property,  under  existing  laws  and  reg-    3ec-3-l&ld- 
ulations,  shall  not  be  affected  by  this  Act,  except  as  provided 
in  section  one;  but  in  all  cases  arising  as  to  such  property 
so  intrusted  the  officer  or  agent  shall  have  an  opportunity 
to  relieve  himself  from  liability.     Sec.  «?,  ibid. 

1233.  That  the  heads  of  the  several  Departments  are    Reguiationsby 
hereby  empowered  to  make  and  enforce  regulations  to  mentis.0 

1  Under  existing  laws  and  regulations  there  is  no  system  of  fiscal  accountability 
to  regimental  commanders  for  property  belonging  to  the  United  States.  For  statu- 
tory provisions  respecting  such  accountability  see  the  title  "Property  Accounta- 
bility." 


446      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

i&sec8.  4  and  5,  carrv  Out  the  provisions  of  this  Act.    That  all  laws  or 
Kepeai.          parts  of  laws  inconsistent  with  the  provisions  of  this  Act 
are  hereby  repealed.1     Sees.  4  and  5,  ibid. 

DEFICIENCY  IN,   AND  DAMAGE   TO,   PUBLIC  PROPERTY. 

Deficiencies.        1234.  In  case  of  deficiency  of  any  article  of  military 

74,  a.  Jv.  4,  p.  IT!'  supplies,  on  final  settlements  of  the  accounts  of  any  officer 

sec.  1804,  B.  s.  cnarge(j  wjth  the  issue  of  the  same,  the  value  thereof  shall 

be  charged  against  the  delinquent  and  deducted  from  his 

'Under  the  authority  conferred  b~  this  section  tbe  following  regulations  have 
been  adopted  and  promulgated  by  the  War  Department : 

GENERAL  PROVISIONS. 

*  Accountability  and  responsibility  devolve  upon  any  person  to  whom  public 
property  is  intrusted  and  who  is  required  to  make  returns  therefor.  Responsibility 
without  accountability  devolves  upon  one  to  whom  such  property  is  intrusted,  but 
who  is  not  required  to  make  returns  therefor.  Thus,  with  respect  to  quartermas- 
ter's supplies  intrusted  to  a  company  or  detachment  commander,  responsibility  but 
not  accountability  attaches.  (Par.  657,  A.  R.,  1895.) 

The  officer  in  permanent  or  temporary  command  of  a  post  or  station  is  responsible 
for  the  security  of  all  public  property  of  the  command,  whether  in  use  or  iu  store, 
and  although  for  purposes  of  periodical  accountability  to  the  War  Department  it 
may  ail  have  been  officially  receipted  for  by  subordinate  officers,  the  commanding 
officer  is  nevertheless  responsible  and  pecuniarily  liable  with  them  for  the  strict 
observance  of  the  regulations  in  regard  to  its  preservation,  use,  and  issue.  He  will 
take  care  that  all  storehouses  are  properly  guarded,  that,  only  reliable  agents  are 
employed,  and  only  trustworthy  enlisted  men  are  detailed  for  duty  in  them  or  in 
connection  with  property.  (Par.  658,  ibid.) 

If  an  officer  in  charge  of  the  public  property  of  a  command  (not  properly  pertain- 
ing to  a  company  or  detachment)  is,  by  order,  leave  of  absence,  or  any  other  cause, 
separated  from  it,  the  commanding  officer  or  an  officer  designated  by  him  will  receipt 
and  account  for  it.  (Par.  659,  ibid.) 

If  it  becomes  necessary  to  remove  all  officers  from  the  charge  of  public  property 
the  commanding  officer  will  take  measures  to  secure  it  and  report  the  circumstances 
to  the  proper  authority.  (Par.  660,  ibid.) 

A  company  or  detachment  commander  is  responsible  for  all  public  property  per- 
taining to  his  company  or  detachment,  and  will  not  transfer  his  accoantability 
therefor  to  a  successor  during  periods  of  absence  of  less  than  a  month,  unless  so 
ordered  by  competent  authority ;  when  such  absence  exceeds  a  month  the  question 
of  responsibility  is  settled  by  the  proper  authority.  (Par  661,  ibid  ) 

The  officer  in  temporary  or  permanent  command  of  a  company  or  detachment  is 
responsible  for  all  public  property  used  by  or  in  possession  of  the  command,  whether 
he  receipt  for  it  or  not.  (Par.  662,  ibid.) 

The  property  responsibility  of  a  company  commander  can  not  be  transferred  to 
enlisted  men.  'It  is  his  duty  to  attend  personally  to  its  security,  and  to  superintend 
issues  himself  or  cause  them  to  be  superintended  by  a  commissioned  officer.  (Par. 
603,  ibid.) 

An  officer  will  not,  when  it  can  be  avoided,  be  detailed  for  duty  which  will  sep- 
arate him  from  public  property  for  which  he  is  accountable.  (Par.  654,  ibid.) 

All  returns  of  stores  or  supplies  will  bo  rendered  as  required  by  regulations  or 
orders.  Those  of  subsistence  stores  and  subsistence  property  will  be  forwarded 
within  ten  days  after  the  expiration  of  the  accounting  periods,  and  those  of  other 
classes  of  stores  and  property  within  twenty  days,  to  the  chiefs  of  bureaus  to  which 
they  pertain.  Abstracts  of  purchases  will  be  forwarded  with  the  money  accounts. 
(Par.  700,  ibid.) 

ADMINISTRATIVE  EXAMINATION  OP  PROPERTY  RETURNS. 

As  soon  as  possible  after  the  receipt  of  a  return  by  the  proper  chief  of  bureau,  it 
will  be  examined  in  his  office,  and  the  officer  making  the  return  will  be  notified  of 
all  errors  and  irregularities  found  therein  and  granted  three  months  to  correct  them. 
Suspensions  or  disallowances  will  not  be  made  on  account  of  slight  informalities 
which  do  not  affect  the  validity  of  a  voucher,  but  the  officer's  attention  may  be 
called  to  them.  Whenever  the  errors  have  been  corrected  or  compensation  has  been 
made  for  deficient  articles,  and  the  action  of  the  bureau  chiet  is  sustained  or  modified 
by  the  Secretary  of  War,  the  return  will  be  regarded  as  settled,  and  the  officer  who 
rendered  it  will  be  notified  accordingly.  (Par.  701.  ibid.) 

If  the  necessary  corrections  in  the  return  be  not  made  within  the  prescribed  time, 
the  facts  will  be  reported  to  the  Secretary  of  War.  When  it  has  been  determined 
that  the  monev  value  of  the  property  for  which  an  officer  has  failed  to  account  shall 
be  refunded  to  the  United  States,  the  facts  will  be  certified  to  the  Auditor  for  the 
War  Department  by  the  chief  of  bureau.  (Par.  702,  ibid.) 

ISSUES  AND  TRANSFERS. 

A  transfer  of  public  property  involves  a  change  of  possession  and  accountability. 
The  transferring  officer  will  furnish  the  receiving  officer  with  invoices,  in  duplicate, 
accurately  enumerating  the  property,  and  the  latter  will  return  duplicate  receipts. 


THE    MILITARY    LAWS    OF    THE   UNITED    STATES.  447 

monthly  pay,  unless  he  shall  show  to  the  satisfaction  of  the 
Secretary  of  War,  by  one  or  more  depositions  setting  forth 
the  circumstances  of  the  case,  that  said  deficiency  was  not 
occasioned  by  any  fault  on  his  part.  And  in  case  of  dam- 
age to  any  military  supplies,  the  value  of  such  damage 
shall  be  charged  against  such  officer  and  deducted  from  his 
monthly  pay,  unless  he  shall,  in  like  manner,  show  that 
such  damage  was  not  occasioned  by  any  fault  on  his  part.1 
(See  Art.  of  War. 15.) 

The  transaction  will  appear  on  the  property  returns  rendered  by  each.  (Par.  665, 
ibid.) 

When  an  officer  to  whom  stores  have  been  forwarded  believes  them  to  have  mis- 
carried, he  will  promptly  inform  the  issuing  and  forwarding  officers.  (Par.  666, 
ibid.) 

If  an  officer  to  whom  public  property  has  been  transferred  refuses  to  receipt  for 
it,  the  invoicing  officer  will  report  the  facts  to  the  commanding  officer  of  the  former 
for  action.  Copies  of  all  papers  relating  to  the  transaction  will  be  filed  with  his 
returns.  (Par.  667,  ibid.) 

Upon  the  receipt  of  public  property  by  an  officer  he  will  make  careful  examina- 
tion to  ascertain  its  quality  and  condition,  but  will  not  break  original  packages  until 
issues  are  to  be  made,  unless  he  has  reason  to  believe  the  contents  defective.  Should 
he  discover  defect  or  shortage,  he  will  apply  for  a  board  of  survey  to  determine  it 
and  fix  the  responsibility.  Should  he  consider  the  property  unht  for  use,  he  will 
submit  inventories  in  triplicate  and  request  the  action  of  an  inspector.  The  same 
rule  will  be  observed  in  regard  to  packages  when  first  opened  for  issue,  and  for 
property  damaged  or  missing  while  in  store.  (Par.  668,  ibid.) 

When  packages  of  supplies  are  opened  for  the  first  time,  whether  because  of 
apparent  defect  or  for  issue,  the  officer  responsible  or  some  other  commissioned  officer 
will  be  present  and  verify  the  contents  by  actual  weight,  count,  or  measurement,  as 
circumstances  may  require,  and  in  case  of  deficiency  or  damage  will  make  written 
report  of  the  facts  to  the  post  commander.  If  only  the  officer  responsible  be  present 
and  make  the  report,  he  will  secure  the  sworn  statements  in  writing  of  one  or  more 
civilians  or  enlisted  men  regarding  the  condition  of  the  property  when  examined. 
Should  a  board  of  survey  be  convened,  the  post  commander  will  refer  to  it  the  report 
made  by  the  examining  officer,  together  with  the  sworn  statements.  At  arsenals 
and  depots  where  there  are  persons  whose  special  duty  it  is  to  receive  and  issue  public 
stores,  the  reports  herein  required  may  be  made  by  them  instead  of  officers  of  the 
Army.  (Par.  669,  ibid.) 

The  giving  or  taking  of  receipts  in  blank  for  public  property  is  prohibited.  (Par. 
670,  ibid.) 

Supplies  procured  by  one  bureau  will  not  be  furnished  to  another,  except  by  special 
authoi  ity  of  the  Secretary  of  War.  When  furnished  and  restored  in  kind,  they  will 
be  delivered  at  the  post  from  which  received,  or  at  such  other  post  as  department 
commanders  or  chiefs  of  bureaus  concerned  may  determine.  If  the  transaction  is 
between  two  bureaus  of  the  War  Department,  payment  will  be  made  at  the  contract 
or  invoice  price  of  the  stores ;  when  between  a  bureau  of  the  War  Department  and 
any  other  Executive  Department,  the  amount,  to  be  paid  will  include  the  contract  or 
invoice  price  and  cost  of  transportation.  (Par.  671,  ibid.) 


In  no  case  will  means  of  transportation  or  other  property  of  any  branch  of  the 
military  service  be  taken  as  a  part  of  the  outfit  of  surveying  or  exploring  expeditions 
for  which  Congress  has  made  appropriations,  without  the  express  authority  of  the 


ing  expeditions 

_,,.__ .  without  the  exnress  a 

Secretary  of  WV.    (Par.  672,  ibid.) 


PROPERTY  ACCOUNTABILITY. 

All  public  property,  whether  paid  for  or  not,  must  be  accounted  for  on  the  proper 
returns.  (Par.  692,  ibid.) 

An  officer  accountable  for  the  public  property  of  two  or  more  companies  will 
account  for  that  pertaining  to  each,  except  quartermaster's  supplies,  on  a  separate 
return.  (Par.  693,  ibid.) 

Accountability  for  public  property  will  not  be  transferred  to  enlisted  men,  except 
to  sergeants  of  the  post  noncommissioned  staff  at  ungarrisoned  posts,  and  sergeants 
of  the  Signal  Corps.  (Par.  694,  ibid.) 

Vouchers  for  issues  or  expenditures  of  property  not  authorized  by  regulations 
will  be  accompanied  by  copies  of  the  orders  directing  the  issues  or  expenditures. 
(Par.  695,  ibid.) 

An  officer  will  have  credit  for  an  expenditure  of  property  made  in  obedience  to  the 
order  of  his  commanding  officer.  If  the  expenditure  is  disallowed,  it  will  be 
charged  to  the  officer  who  ordered  it.  (Par.  696.  ibid.) 

1  Public  property  expended,  lost  or  destroyed  in  the  military  service  must  be  ac- 
counted for  by  affidavit,  or  the  certificate  of  a  commissioned  officer,  or  other  satis- 
factory evidence.  (Par.  697,  A.  R.,  1895.) 

When  an  enlisted  man  has,  by  a  court-martial,  been  convicted  of  losing  or  damag- 
ing public  property,  the  officer 'responsible  for  the  property  will  send  with  his  prop- 
erty return  a  certified  copy  of  so  much  of  the  court-martial  order  as  refers  to  the 


448  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

arms*  m  a  g  e  to     1235.  The  cost  of  repairs  or  damages  done  to  arms,  equip- 

38Fseb.  8,gi8i5^c.  merits,  or  implements,  shall  be  deducted  from  the  pay 

sec.  1303,  it.  s.  of  an  officer  or  soldier  in  whose  care  or  use  the  same 

were  when  such  damages  occurred,  if  said  damages  were 

occasioned  by  the  abuse  or  negligence  of  said  officer  or 

soldier. 

DISPOSITION     OF     DAMAGED,    UNSUITABLE,   OR    USELESS 
PROPERTY. ' 

sales  of  stores.     1236.  The  President  may  cause  to  be  sold  any  military 

«>3,  M.'  i,'  2,  v.'  4,  stores  which,  upon  proper  inspection  or  survey,  appear  to 

'sec.'i24i,R.s.  be  damaged,  or  unsuitable  for  the  public  service.     Such 

inspection  or  survey  shall  be  made  by  officers  designated 

by  the  Secretary  of  War,  and  the  sales  shall  be  made  under 

regulations  prescribed  by  him.1 

Administration     1237.  The  Secretary  of  War  is  authorized  to  detail  one 
counting. m  lc"  or  more  of  the  employees  of  the  War  Department  for  the 
78^ar25!'v18i3' p!  purpose  of  administering  the  oaths  required  by  law  in  the 
c^G^v.^p^Ii!  settlement  of  officers'  accounts  for  clothing,   camp  and 
Sec.  225,  R.  s.  garrjson  equipage,  quartermaster's  stores,  and  ordnance, 
which  oaths  shall  be  administered  without  expense  to  the 
parties  taking  them.     In  settling  the  accounts  of  the  com- 
manding officer  of  a  company  for  clothing  and  other  mili- 
tary supplies,  the  affidavit  of  any  such  officer  may  be 
received  to  show  the  loss  of  vouchers  or  company  books, 
or  any  matter  or  circumstance  tending  to  prove  that  any 
apparent  deficiency  was  occasioned  by  unavoidable  acci- 
dent or  lost  in  actual  service,  without  any  fault  on  his 
part,  or  that  the  whole  or  any  part  of  such  clothing  and 
supplies  had  been  properly  and  legally  used  and  appropri- 
ated $  and  such  affidavit  may  be  considered  as  evidence  to 

case,  giving  number,  date,  and  place  of  issue  of  the  order,  and  stating  on  the  face  of 
said  copy  the  rolls  on  which  the  charges  are  made.  (Par.  698,  ibid.) 

Should  an  officer  or  agent  of  the  Government  charged  with  public  property  fail  to 
render  the  prescribed  returns  thereof  within  a  reasonable  time,  a  settlement  of  his 
accounts  will  be  made  by  the  proper  bureau  of  the  War  Department,  and  the  money 
value  of  the  property  with  which  he  is  charged  will  be  reported  against  him  for  stop- 
page .  (Par.  699,  ibid . ) 

1  For  other  statutes  authorizing  the  sale  of  obsolete  and  unsuitable  property,  see 
the  chapters  entitled  THE  ORDNANCE  DEPARTMENT  and  THE  PUBLIC  LANDS.  For 
provisions  respecting  the  disposition  of  funds  arising  from  the  sale  of  public  prop- 
erty or  stores,  see  the  chapters  entitled  THE  PUBLIC  MONEYS,  THE  STAFF  DEPART- 
MENTS, and  the  THE  ORDNANCE  AND  SUBSISTENCE  DEPARTMENTS. 

Unserviceable  public  property  can  only  be  disposed  of  by  sale  according  to  the 
provisions  of  sections  1241,  3618,  Revised  Statutes.  It  can  not  be  exchanged  for 
other  property  not  belonging  to  the  United  States.  Thus,  held  that  an  old  and  use- 
less printing  press,  the  propertv  of  the  United  States,  could  not  bo  disposed  of  by 


exchanging~it  for  certain  new  property  belonging  to  a  regiment.    (Ibid.,  633,  par.  23.) 
Held  that,  in  the  absence  of  specific  authority  from  Congress,  the  Secretary  of 
War  would  not  be  empowered  to  sell  to  a  State,  for  the  use  of  its  militia,  an  amount 


of  clothing  in  excess  of  the  State's  quota  as  already  appropriated.  And  held  that, 
without  such  authority,  he  would  not  be  empowered  to  exchange  Government  prop- 
erty for  property  owned  or  possessed  by  a  State ;  thus,  that  he  could  not  legally 
deliver  to  the  State  of  Pennsylvania  certain  arms,  the  property  of  the  United  States, 
in  exchange  for  arms  formerly  issued  to  the  State  for  the  use  of  its  militia,  and  in 
which  the  State  had  a  qualified  property.  (Ibid.,  par.  25.) 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  449 

establish,  the  facts  set  forth,  with,  or  without  other  evi- 
dence, as  may  seem  to  the  Secretary  of  War  just  and 
proper  under  the  circumstances  of  the  case.1 

1  Causes  of  damage  to,  and  of  loss  and  destruction  of,  military  property  are 
classified  as  follows : 

(1)  Unavoidable  causes,  being  those  over  which  the  responsible  officers  have  no 
control,  occurring  (a)  in  the  ordinary  course  of  service,  or  (b)  as  incident  to  an 
active  i 


(2)  Avoidable  causes,  being  those  due  to  carelessness,  willfulness,  or  neglect. 
(Par.  681,  A.R,,  1895.) 

Officers  responsible  for  property  will  be  charged  for  any  damage  to,  or  loss  or 
destruction  of  the  same,  and  the  money  value  deducted  from  their  monhly  pay, 
unless  they  show,  to  the  satisfaction  of  the  Secretary  of  War,  hy  their  own  affida- 
vits or  certificates  or  by  one  or  more  depositions,  that  the  damage,  loss,  or  destruc- 
tion was  occasioned  by  unavoidable  causes,  and  without  fault  or  neglect  on  their 
part.  (Par.  682,  ibid.) 

The  proper  officers  to  administer  oaths  in  the  administration  of  the  affairs  of  the 
Army  (except  when  otherwise  specially  provided)  are  judge-advocates  of  depart- 
ments, judge  advocates  of  courts-martial,  and  trial  officers  of  summary  courts. 
When  none  of  these  are  within  reach  and  available,  recourse  must  be  had  to  a  notary 
public  or  other  civil  officer  competent  to  administer  oaths  for  general  purposes.  (Par. 
683.  ibid.) 

If  an  article  of  public  property  be  lost  or  damaged  by  the  neglect  or  fault  of  any 
officer  or  soldier,  he  shall  pay  the  value  thereof  or  the  cost  of  repairs,  at  such  rates 
as  a  board  of  survey  may  determine.  ( Par.  684,  ibid.) 

The  amount  charged  against  an  enlisted  man  on  the  muster  and  payrolls  on  account 
of  loss  or  damage  of  or  repairs  to  Government  property  shall  not  exceed  the  value  of 
the  article  or  cost  of  repairs;  and  such  charge  will  only  be  made  on  conclusive  proof, 
and  never  without  an  inquiry,  if  the  soldier  demand  it.  He  will  be  informed  at  the 
time  of  signing  the  pay  rolls  that  his  signature  will  be  regarded  as  an  acknowledg- 
ment of  the  justice  of  the  charge.  (Par.  685,  ibid.) 

When  a  deserter  carries  away  public  property,  or  when  such  property  is  lost 
through  his  desertion,  its  value  will  be  determined  by  a  board  of  survey  and  charged 
against  him  on  the  next  muster  and  pay  rolls.  (Par.  686,  ibid.) 

If  articles  of  public  property  are  em'bez/led,  or  lost  or  damaged  through  neglect, 
by  a  civilian  employee,  the  value  or  damage  as  ascertained  (and  by  a  board  of  survey 
if  necessary)  shall  be  charged  to  him  and  set  against  any  pay 'or  money  due  him. 
(Par.  687,  ibid.) 

For  provisions  respecting  boards  of  survey,  see  paragraphs  708-722,  Army  Regula- 
tions of  1895. 

PAYMENT  OF  REWABDS. 

Whenever  information  is  received  that  animals  or  other  property  belonging  to  the 
military  service  of  the  United  States  are  unlawfully  in  the  possession  of  any  person 
not  in  the  military  service,  the  quartermaster,  or  other  proper  officer,  will  promptly 
cause  proceedings  to  be  instituted  and  diligently  prosecuted  before  the  civil  authori- 
ties for  the  recovery  of  the  property,  and,  if  the  same  has  been  stolen,  for  the  arrest, 
trial,  conviction,  and  due  punishment  of  the  offender  and  his  accomplices.  (Par.  688 
A.  R.,  1895.) 

Upon  satisfactory  information  that  such  United  States  property,  unalwfully  in  the 
possession  of  any  parties,  is  likely  to  be  taken  away,  concealed,  or  otherwise  dis- 
posed of  before  the  necessary  proceedings  can  be  had  in  the  civil  tribunals  for  its 
recovery,  the  post  or  detachment  commander  will  atonce  cause  the  same  to  be  seized, 
and  will  hold  it  subject  to  any  legal  proceedings  that  maybe  instituted  by  other  par- 
ties. Persons  caught  in  the  act  of  stealing  public  property  will  be  summarily  ar- 
rested by  the  troops  and  turned  over  to  the  civil  authorities  for  trial.  (Par.  689,  ibid.) 

Quartermasters,  after  they  have  failed  to  get  possession  of  a  lost  or  stolen  animal 
by  the  ordinary  means,  may  authorize  the  payment  of  a  reward  of  not  more  than  $25 
for  its  recovery.  If  the  animal  has  been  stolen,  they  may  offer  an  additional  reward 
of  like  amount  for  each  person  arrested,  tried,  convicted,  and  sentenced  for  the  theft. 
(Par.  690,  ibid  ) 

The  expenses  necessarily  incurred  by  any  action  under  the  three  preceding  para- 
graphs, with  the  exception  of  attorney's  fees,  will  be  paid  by  the  Quartermaster's 
Department,  upon  proper  vouchers  approved  bv  the  department  commander.  Offi- 
cers will  promptly  report  their  action  to  department  headquarters.  (Par.  691,  ibid.) 

1919 29 


CHAJPTEK 


THE  MILITIA— THE    MILITIA   OF  THE  DISTRICT 
OF  COLUMBIA— THE  TERRITORIAL  MILITIA. 

THE   MILITIA. 


Par. 

1238.  The  militia. 

1239.  Who  to  be  enrolled  in  the 

militia. 

1240.  Enrollment,  by  whom. 

1241.  Notice  of  enrollment. 

1242.  Arms  and  accouterments. 

1243.  Persons  exempt. 

1244.  Arrangement  into  divisions, 

brigades,  etc. 

1245.  Militia,  how  officered. 

1246.  Artillery  and  cavalry. 

1247.  Regimental  colors. 

1248.  Adjutant-general    in     each 

State ;  his  duty. 

1249.  Returns. 

1250.  Returns  to  the  President. 

1251.  Discipline. 

1252.  Officers,  how  to  take  rank. 

1253.  Care  of  the  wounded. 

1254.  Brigade  inspector's  duty. 

1255.  Privileges  of  certain  corps. 

1256.  Orders  of  President  in  case 

of  invasion. 

1257.  Militia,  how  apportioned. 

1258.  Subject  to  rules  of  war. 

1259.  Organization. 

1260.  How  formed. 

1261.  How  composed. 

1262.  When  called  forth,  term  of 

service  to  be  specified. 

1263.  Disobedience  of  orders,  pen- 

alty. 

1264.  Pay,  rations,  etc. 

1265.  When  pay  to  commence. 

1266.  Traveling  allowance. 

1267.  Forage  and  use  of  horses. 

1268.  Expenses  of  march  to  ren- 

dezvous. 

1269.  Addition  to  ration. 

1270.  Provision  for  widows,  etc.,  of 

those  who  die  in  service. 
450 


Par. 

1271.  Volunteers,  etc.,  to  suppress 

Indian  depredations  in 
Florida,  benefits  to. 

1272.  Courts-martial,    how    com- 

posed. 

1273.  Fines  assessed,   how   to  be 

levied. 

1274.  To  be  paid  into  the  Treasury 

of  United  States. 

1275.  Appropriation  for  arms  and 

equipments. 

1276.  Apportionment. 

1277.  Secretary  of  War  to  direct 

purchases  of  arms,  etc. 

1278.  Unserviceable  arms,  etc. 

1279.  Distribution     of     arms     to 

States. 

1280.  Distribution  to  States  which 

had  not  received  their 
quota  from  1862  to  1869. 

1281.  Arms  issued  to  States,  etc., 

between  January  1,  1861, 
and  April  9,  1865,  and  used 
to  suppress  rebellion. 

1282.  Repeal    of     law    requiring 

amounts  for  purchase  of 
arms  to  be  carried  into  the 
Treasury. 

1283.  Appropriation  available. 

1284.  Perm  anent  appropriation  for 

arming  militia  not  to 
lapse. 

1285.  Issues  of  ordnance  for  prac- 

tice in  heavy  artillery 
drill. 

1286.  Militia  of   the   District  of 

Columbia. 

1287.  Issues    to    be    made     from 

Army  stores. 

1289-1291.  The  Territorial  militia. 
Issues  of  arms  to. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  451 


1238.  A  well  regulated  Militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  an^  JJJjJ,,*0 
bear  Arms,  shall  not  be  infringed.1     Constitution  of  the 
United  States,  second  amendment. 

1239.  Every  able-bodied  male  citizen  of  the  respective    who  to  be  en- 
States,  resident  therein,  who  is  of  the  age  of  eighteen  years,  tia.e< 

and  under  the  age  of  forty-five  years,  shall  be  enrolled  in  33,  ».£*!,?.  271- 

,  ,  .  v  ,  •  July  17,  1862,  c.  201.  s.  1,  v.  12,  p  597  ;  Mar.  2,  1867,  c.  145,  s.  6, 

tne  militia.  v.  14,  p.  423.    Houston  v.  Moore,  5  Wh.,  1.      Sec.  1625,  B.  S. 

1240.  It  shall  be  the  duty  of  every  captain  or  command-  Wjf01£ollment'  by 
ing  officer  of  a  company  to  enroll  every  such  citizen  residing  33^a1yv'i179227i' 
within  the  bounds  of  his  company,  and  all  those  who  may,    sec.i626,R.s. 
from  to  time,  arrive  at  the  age  of  eighteen  years,  or  who, 

being  of  the  age  of  eighteen  years  and  under  the  age  of 
forty-five  years,  come  to  reside  within  his  bounds. 

1241.  Each  captain  or  commanding  officer  shall,  without    Notice  of  en- 
delay,  notify  every  such  citizen  of  his  enrollment,  by  a    May  s,  1792,  c. 

,  33,8.  1,  v.l,  p.  271; 

proper  non  -commissioned  officer  of  his  company,  who  may  Mar.  2,  1803,  c.  15, 
prove  the  notice.     And  any  notice  or  warning  to  a  citizen  8'sec.'  i6272,°B.  s. 
enrolled,  to  attend  a  company,  battalion,  or  regimental  mus- 
ter, which  is  according  to  the  laws  of  the  State  in  which  it 
is  given  for  that  purpose,  shall  be  deemed  a  legal  notice  of 
his  enrollment. 

1242.  Every  citizen  shall,  after  notice  of  his  enrollment,  co^j£J£e5Sj  ac" 
be  constantly  provided  with  a  good  musket  or  firelock  of  ag^YvV^Vf- 
bore  sufficient  for  balls  of  the  eighteenth  part  of  a  pound,  ifa»\Migo.  15,' 
a  sufficient  bayonet  and  belt,  two  spare  flints,  and  a  knap-   sec.'  lea's,  B.  s. 
sack,  a  pouch  with  a  box  therein  to  contain  not  less  than 
twenty-four  cartridges,  suited  to  the  bore  of  his  musket  or 

firelock,  each  cartridge  to  contain  a  proper  quantity  of  pow- 
der and  ball;  or  with  a  good  rifle,  knapsack,  shot-pouch 
and  powder-horn,  twenty  balls  suited  to  the  bore  of  his 

1  The  right  to  bear  arms  is  not  granted  by  the  Constitution  ;  neither  is  it  in  any 
manner  dependent  upon  that  instrument  for  its  existence.  The  second  amendment 
means  no  more  than  that  it  shall  not  be  infringed  by  Congress,  and  has  no  other 
effect  than  to  restrict  the  powers  of  the  National  Government.  (U.  S.  v.  Cruikshank, 
92  U.  S.,  542.) 

The  right  voluntarily  to  associate  together  as  a  military  company  or  organization, 
or  to  drill  or  parade  with  arms,  without  and  independent  of  an  act  of  Congress  or 
law  of  the  State  authorizing  the  same,  is  not  an  attribute  of  national  citizenship. 
Military  organization  and  military  drill  and  parade  under  arms  are  subjects  espe- 
cially under  the  control  of  the  government  of  every  country.  They  can  not  be  claimed 
as  a  right  independent  of  law.  Under  our  political  system  they  are  subject  to  the 
regulation  and  control  of  the  State  and  Federal  Governments,  acting  in  due  regard 
to  their  respective  prerogatives  and  powers.  The  Constitution  and  laws  of  the 
United  States  will  be  searched  in  vain  for  any  support  to  the  view  that  these  rights 
are  privileges  and  immunities  of  citizens  of  the  United  States,  independent  of  some 
specific  legislation  on  the  subject.  It  can  not  be  successfully  questioned  that  the 
State  governments,  unless  restrained  by  their  own  constitutions,  have  the  power  to 
regulate  or  prohibit  associations  and  meetings  of  the  people,  except  in  the  case  of 
peaceable  assemblies  to  perform  the  duties  or  exercise  the  privileges  of  citizens  of 
the  United  States  ;  and  have  also  the  power  to  control  and  regulate  the  organization, 
drilling,  and  parading  of  military  bodies  and  associations,  except  when  such  bodies 
or  associations  are  authorized  by  the  militia  laws  of  the  United  States.  The  exercise 
of  this  power,  by  the  States,  is  necessary  to  the  public  peace,  safety,  and  good  order. 
To  deny  the  power  would  be  to  deny  the  right  of  the  State  to  disperse  assemblages 
organized  for  sedition  and  treason,  and  the  right  to  suppress  armed  mobs  bent  on 
riot  and  rapine.  (Presser  v.  Illinois,  116  U.  S.,  252,  267  ;  TJ,  S,  V,  Cruiksbank,  92  U.  S., 
542;  New  Yorkv.  Miln,  11  Pet.,  102,  139.) 


452  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

rifle,  and  a  quarter  of  a  pound  of  powder;  and  shall  ap- 
pear, so  armed,  accoutered,  and  provided  when  called  out 
to  exercise,  or  into  service,  except  that  when  called  out  on 
company  days  to  exercise  only,  he  may  appear  without  a 
knapsack.  And  all  arms,  ammunition,  and  accouterments 
so  provided  and  required  shall  be  held  exempted  from  all 
suits,  distresses,  executions,  or  sales,  for  debt  or  for  the 
payment  of  taxes.  Each  commissioned  officer  shall  be 
armed  with  a  sword  or  hanger  and  spontoon. 

enTtr80118  ex"  1243*  The  ^ice-President  of  the  United  States;  the  offi- 
33May  8«j179|'7|-  cers  judicial  and  executive  of  the  Government  of  the  United 
May  ?',  1800,  c.  46^  States ;  the  members  of  both  Houses  of  Congress,  and  their 
Apr.  Jo,  isio.c.s?;  respective  officers;  all  custom-house  officers  with  their 

8. 33,  v.  2,  p.  603.        ,       ,  ,,  i  ,  j  ,! 

sec.  1629,  B. s.  clerks;  all  postmasters  and  persons  employed  in  the  trans- 
portation of  the  mail;  all  ferrymen  employed  at  any  ferry 
on  post- roads;  all  inspectors  of  exports;  all  artificers  and 
workmen  employed  in  the  armories  and  arsenals  of  the^ 
United  States;  all  pilots;  all  mariners  actually  employed 
in  the  sea-service  of  any  citizen  or  merchant  within  the 
United  States;  and  all  persons  who  now  are  or  may  here- 
after be  exempted  by  the  laws  of  the  respective  States, 
shall  be  exempted  from  militia  duty,  notwithstanding  their 
being  above  the  age  of  eighteen,  and  under  the  age  of  forty- 
five  years. 

Arrangement     1244.  The  militia  of  each  State  shall  be  arranged  into 

into    divisions, 

brigades,  etc.^  divisions,  brigades,  regiments,  battalions,  and  companies, 
33,  s.aCvA,  P.  272'.  as  the  legislature  of  the  State  may  direct.  Each  brigade 

Sec.  1630*  B.  S.  ..  ,          , 

may  consist  of  four  regiments;  each  regiment  ol  two  bat- 
talions; each  battalion  of  five  companies;  each  company 
of  sixty-four  privates.  Each  division,  brigade,  and  regi- 
ment shall  be  numbered  at  the  formation  thereof;  and  a 
record  of  such  numbers  shall  be  made  in  the  adjutant- 
general's  office  of  the  State.  When  in  the  field,  or  in 
service  in  the  State,  each  division,  brigade,  and  regiment 
shall  respectively  take  rank  according  to  its  number,  reck- 
oning the  first  or  lowest  number  highest  in  rank. 
Militia,  how  1245.  The  militia  shall  be  officered  by  the  respective 

officered. 

May  8, 1792,  c.  States  as  follows:  To  the  militia  of  each  State,  one  quarter- 

33,  s.  3, v.l,  p.  272; 

Mar. 2, 1803, c. is, master- general;   to  each  division,  one  major-general,  two 
Apr.  vis,'  ISM,  c!  aids-de-camp  with  the  rank  of  major,  one  division-inspector 
Apr! '20,  i8i6,  c'.  with  the  rank   of   lieutenant-colonel,   and  one  division- 
64sec.3i63i9,5R. s.  quartermaster  with  the  rank  of  major;  to  each  brigade, 
one  brigadier-general,  one  brigade-inspector,  to  serve  also 
as  brigade-major  with  the  rank  of  major,  one  quarter- 
master of  brigade  with  the  rank  of  captain,  and  one  aid- 
de-camp  with  the  rank  of  captain ;  to  each  regiment  of  two 


THE   MILITARY  LAWS   OP   THE   UNITED   STATES.  453 

battalions,  one  colonel,  one  lieutenant-colonel,  one  major, 
and  one  chaplain ;  to  only  one  battalion,  a  major,  who  shall 
command  the  same;  to  each  company,  one  captain,  one 
lieutenant,  one  ensign,  four  sergeants,  four  corporals,  one 
drummer,  and  one  fifer  or  bugler.  And  there  shall  be  a 
regimental  staff,  to  consist  of  one  adjutant  and  one  quarter- 
master, to  rank  as  lieutenants,  one  paymaster,  one  surgeon, 
one  surgeon's  mate,  one  sergeant-major,  one  drum-major, 
and  one  fife-major. 

1246.  There  shall  be  formed  for  each  battalion  at  least    Artillery  and 

cavalry. 

one  company  of  grenadiers,  light  infantry,  or  riflemen,  and  oMay  s,  1792  c. 
for  each  division  at  least  one  company  of  artillery  and  one  272  ;VarV2,  isos; 
troop  of  horse.  For  each  company  of  artillery  there  shall  207. ' 8>  '  v>  '  p' 

Sec  1632  B  S 

be  one  captain,  two  lieutenants,  lour  sergeants,  four  cor- 
porals, six  gunners,  six  bombardiers,  one  drummer,  and 
one  fifer.  The  officers  shall  be  armed  with  a  sword  or 
hanger,  a  fusee,  bayonet,  and  belt,  with  a  cartridge-box  to 
contain  twelve  cartridges;  and  each  private  shall  furnish 
himself  with  all  the  equipments  of  a  private  in  the  infan- 
try, until  proper  ordnance  and  field  artillery  is  provided. 
For  each  troop  of  horse  there  shall  be  one  captain,  two 
lieutenants,  one  cornet,  four  sergeants,  four  corporals,  one 
saddler,  one  farrier,  and  one  trumpeter.  The  commissioned 
officers  shall  furnish  themselves  with  good  horses  of  at 
least  fourteen  hands  and  a  half  high,  and  shall  be  armed 
with  a  sword  and  pair  of  pistols,  the  holsters  to  be  cov- 
ered with  bearskin  caps.  Each  dragoon  shall  furnish  him- 
self with  a  serviceable  horse,  at  least  fourteen  hands  and  a 
half  high,  a  good  saddle,  bridle,  mail-pillion,  and  valise,  hol- 
sters, and  a  breast-plate  and  crupper,  a  pair  of  boots  and 
spurs,  a  pair  of  pistols,  a  saber,  and  a  cartridge-box,  to 
contain  twelve  cartridges  for  pistols.  Each  company  of 
artillery  and  troop  of  horse  shall  be  formed  of  volunteers 
from  the  brigade,  at  the  discretion  of  the  Commander-in- 
chief  of  the  State,  not  exceeding  one  company  of  each  to  a 
regiment,  nor  more  in  number  than  one-eleventh  part  of 
the  infantry,  and  shall  be  uniformly  clothed  in  regimentals, 
to  be  furnished  at  their  own  expense;  the  color  and  fash- 
ion to  be  determined  by  the  brigadier  commanding  the  bri- 
gade to  which  they  belong. 

1247.  Each  battalion  and  regiment  shall  be  provided   Regimental  coi- 
with  the  State  and  regimental  colors  by  the  field-officers,  ^Yv'i1792^' 
and  each  company  with  a  drum  and  fife,  or  bugle-horn,  by    sec/iess,  B.  s. 
the  commissioned  officers  of  the  company,  in  such  manner 

as  the  legislature  of  the  respective  States  may  direct. 


454  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

Adjutant- gen-     1248.  There  shall  be  appointed  in  each  State  an  adjutant- 

eral  in  each  State, 

his  duty.  general,  whose  duty  it  shall  be  to  distribute  all  orders  from 

B3^j?v.i,p.273'.the  commander-in-chief  of  the  State  to  the  several  corps 5 

*  to  attend  all  musters  when  the  conimander-in-chief  of  the 
State  reviews  the  militia,  or  any  part  thereof;  to  obey  all 
orders  from  him  relative  to  carrying  into  execution  and 
perfecting  the  system  of  military  discipline  established  by 
law;  to  furnish  blank  forms  of  returns  that  may  be  re- 
quired, and  to  explain  the  principles  on  which  they  should 
be  made;  to  receive  from  the  several  officers  of  the  different 
corps  throughout  the  State  returns  of  the  militia,  under 
their  command ;  and  to  make  proper  abstracts  from  such 
returns,  and  lay  the  same  annually  before  the  commander 
in-chief  of  the  State. 

Keturns.  1249.  The  several  officers  of  the  divisions,  brigades,  regi- 

"Mav  8    1792    c 

33,  s.  e,  v.'i,  p.  273.  ments,  and  battalions,  shall  report,  in  their  returns  of  the 

Sec.  1635,  B.  S. 

corps  under  their  command,  the  actual  condition  of  their 
arms,  accouter  in  exits,  and  ammunition,  their  delinquencies, 
and  every  other  particular  relating  to  the  general  advance- 
ment of  good  order  and  discipline,  and  shall  make  the  same 
in  the  usual  manner. 

Returns  to  the  1250.  It  shall  be  the  duty  of  the  adjutant- general  in  each' 
Mar.  2, 1803,  c.  State  to  make  return  of  the  militia  of  the  State,  with  their 

15,  s.  1,  v.  2,  p.  207.  ...  ,  , 

Sec.  1636;  R.S.  arms,  accouterments,  and  ammunition,  agreeably  to  the 
provisions  of  law,  to  the  President  of  the  United  States, 
annually,  on  or  before  the  first  Monday  in  January;  and 
it  shall  be  the  duty  of  the  Secretary  of  War,  from  time  to 
time,  to  give  such  directions  to  the  adjutant-generals  of 
the  militia  as  may,  in  his  opinion,  be  necessary  to  produce 
a  uniformity  in  such  returns. 

Discipline.  1251.  The  system  of  discipline  and  field  exercise  which 
97, 8a{v.3,p.577.'  is  ordered  to  be  observed  in  the  different  corps  of  infantry, 

*  artillery,  and  riflemen  of  the  Regular  Army,  shall  also  be 
observed  in  such  corps,  respectively,  of  the  militia.1 

officers,  howto     1252.  All  commissioned  officers  shall  take  rank  according 

take  rank. 

May  8, 1792,  c.  to  the  date  of  their  commissions;   and  when  two  of  the 
sec.'i638,R.s.same  grade  bear  an  equal  date,  their  rank  shall  be  deter- 
mined by  lot  to  be  drawn  by  them  before  the  commanding- 
officer  of  the  brigade,  regiment,  battalion,  company,  or 
detachment. 

Careofthe  1253.  If  any  person,  whether  officer  or  soldier,  belonging 
May  s/1792,  c.  to  the  militia  of  any  State,  and  called  out  into  the  service 
fe£e.i*s*?B.8.of  the  United  States,  be  wounded  or  disabled  while  in 

1  There  is  no  existing  statute  of  the  United  States  authorizing  the  President  to 
call  out  the  militia  for  drill  merely.  The  Constitution,  in  empowering  Congress  "to 
provide  for  organizing,  arming  and  disciplining  the  militia,  '  leaves  their  training 
to  the  States,  and  it  ia  at  least  doubtful  whether  an  act  of  Congress  regulating  the 
drill  of  the  nriiitia  would  be  constitutional.  (Dig.  J.  A.  G.,  520,  par.  9.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  455 

actual  service,  lie  shall  be  taken  care  of  and  provided  for 
at  the  public  expense. 

1254.  It  shall  be  the  duty  of  the  brigade-inspector  to    Brigade  in. 

spector  s  duty. 

attend  the  regimental  and  battalion  meetings  of  the  militia^ May  8, 1792.  c. 
composing  the  several  brigades,  during  the  time  when  they  273."' 

..      .  ...  -,     Sec.  1640,  R.  S. 

are  under  arms,  to  inspect  their  arms,  ammunition,  and 
accouterments ;  to  superintend  their  exercise  and  maneu- 
vers, and  introduce  throughout  the  brigade  the  system  of 
military  discipline  prescribed  by  law,  and  such  orders  as 
they  receive  from  the  Commander-in-chief  of  the  State;  and 
to  make  returns  to  the  adjutant  general  of  the  State,  at  least 
once  in  every  year,  of  the  militia  of  the  brigade  to  which  he 
belongs,  reporting  therein  the  actual  condition  of  the  arms, 
accouterments,  and  ammunition  of  the  several  corps,  and 
every  other  particular  which,  in  his  judgment,  may  relate 
to  their  government  and  the  general  advancement  of  good 
order  and  military  discipline. 

1255.  All  corps  of  artillery,  cavalry,  and  infantry,  now    Privileges    of 

....  i-ii  certain  corps. 

existing  m  any  State,  which,  by  any  law,  custom,  or  usage    May  s,  1792,  c. 
thereof,  have  not  been  incorporated  with  the  militia,  or  are  274  *'  llf  v'  *'  p' 

o^_     if 4.1     ij    w 

not  governed  by  the  general  regulations  thereof,  shall  be 
allowed  to  retain  their  accustomed  privileges,  subject, 
nevertheless,  to  all  other  duties  required  by  law  in  like 
manner  as  the  other  militia. 

1256.  Whenever  the  United  States  are  invaded,  or  are    Orders  of  Pres- 

ident in  ease  of 
in  imminent  danger  of  invasion  from  any  foreign  nation  or  invasion. 

±    --U  f        i,    IT  f  *u         Feb.  28, 1795,  c. 

Indian  tribe,  or  of  rebellion  against  the  authority  of  the36.8.i,v.i,P.424. 
Government  of  the  United   States,  it  shall  be  lawful  for whVi^McC 
the  President  to  call  forth  such  number  of  the  militia  of  the  m°' 
State  or  States,  most  convenient  to  the  place  of  danger,  or  Sec* 1642' B* s* 
scene  of  action,  as  he  may  deem  necessary  to  repel  such 
invasion,  or  to  suppress  such  rebellion,  and  to  issue  his 
orders  for  that  purpose  to  such  officers  of  the  militia  as  he 
may  think  proper.1 

1  The  President  has  no  original  authority  over  the  militia  by  right  of  his  office.  He 
can  only  call  them  out  when  Congress  provides  for  his  doing  so  as  the  agent  of  the 
United  States  tor  such  purpose.  When  the  call  is  complied  with,  the  militia  becomes 
national  militia,  and  he  becomes  their  coinmander-in-chief.  The  law  governing  his 
exercise  of  power  in  calling  out  is  found  in  sections  1642, 5297  5298,  and  5299,  Revised 
Statutes  (Dig.  Opin.  J.  A.  Gen.,  519,  par.  2.) 

The  manner  of  calling  out  of  the  militia  by  the  President  under  the  act  of  1795 
(sec.  1642,  K.  S.),  is  indicated  by  the  Supreme  Court  in  the  leading  case  of  Houston 
v.  Moore,  (a)  where  it  is  observed  that  "The  President's  orders  may  be  given  to  the 
chief  executive  magistrate  of  the  State,  or  to  any  militiaofficer  he  may  think  proper." 
The  call  would  ordinarily  be  addressed  to  the  governor,  who,  in  most  of  the  States, 
is  made  commander-in-chief  of  the  active  militia  of  the  State.  A  further  form,  indeed, 
of  calling  out  the  militia,  viz,  by  a  conscription,  was  authorized  during  the  late  war, 
by  the  act  of  July  17, 1862.  (Ibid.,  par.  1.) 

The  calling  forth  of  the  militia  into  the  United  States  service  is  an  administrative 
function,  a  ministerial  act,  in  which  the  Secretary  of  War  may  issue  the  necessary 
orders  as  the  origin  of  the  Executive,  and  his  act  is  the  act  of  the  President.  Ibid., 
par.  3.) 

The  President,  in  calling  out  a  force  of  militia,  authorized  the  governor  of  a  State 

ol  Wheaton.l  (1820). 


456  THE    MILITARY   LAWS   OP    THE    UNITED    STATES. 

aMoiSonedhow     1257.  When  the  militia  of  more  than  one  State  is  called 

July  17,  1862,  into  the  actual  service  of  the  United  States  by  the  Presi- 

p.597.'   '          '  dent,  he  shall  apportion  them  among  such  States  accord- 

Sec.  1643,  B.  S.  .  -  . 

ing  to  representative  population. 
Subject    to     1258    The  militia,  when  called  into  the  actual  service  of 

rules  of  war. 

Feb.  28,^1795,  the  United  States  for  the  suppression  of  rebellion  against 
424 ;juiy 29/1881,  and  resistance  to  the  laws  of  the  United  States,  shall  be 
282.  'Martin?!  subject  to  the  same  rules  and  articles  of  war  as  the  regular 

Mott,  12  Wh    19 

sec.  1644,  B.  s.  troops  of  the  United  States. 

organization^      1259,  The  militia,  when  called  into  actual  service,  shall 
c.201,8.2,  v.i2,p'.  be  organized  as  prescribed  in  the  two  sections  following. 
59How  formed.        1260.  They  shall  be  formed,  by  the  President,  into  regi- 

juiy  22,'  well  ments  of  infantry,  with  the  exception  of  such  numbers  for 
2699|  juVs,  1862,' cavalry  and  artillery  as  he  may  direct,  not  to  exceed  the 
502^ July  17, 1862,' proportion  of  one  company  of  each  of  those  arms  to  every 
(x2oo,s.5,v.i2,p.  regjment  of  infantry,  and  to  be  organized  as  in  the  regular 

Sec.  1646,  B.  S 

to  designate  the  particular  militia  of  that  State  to  be  included  in  the  call,  and  the 
governor  thereupon  designated  a  certain  regiment,  and  formally  accepted  its  serv- 
ice. Held  that  in  so  doing  he  acted  as  the  agent  of  the  Presidentand  that  his  accept- 
ance was  in  law  an  acceptance  by  the  President,  and  was  equivalent  to  a  muster-in 
of  the  regiment  (Ibid.,  par.  5.)  " 

In  1836  an  Indian  agent  in  Indiana  applied  for  assistance,  in  an  emergency,  to  a 
militia  colonel,  who  furnished  three  companies  of  nis  regiment,  which  were  employed 
and  rendered  faithful  service  for  seven  days  in  assisting  to  execute  the  laws  of  the 
United  States.  Upon  a  claim  now  (1893)  made  for  compensation  for  such  service, 
held  that  the  same  could  not  legally  be  allowed  by  the  Secretary  of  War,  who  could 
have  no  authority  to  recognize,  as  in  the  United  States  service,  militia  who  had  not 
been  called  out  by  the  President  or  by  his  direction ;  and  that  such  claim  could  be 
entertained  by  Congress  alone.  (Ibid.,  par.  6.) 

In  the  exercise  of  its  constitutional  power  "to  provide  for  calling  forth  tbe  mi- 
litia." and  "to  provide  for  organizing"  the  same,  etc.,  Congress  has  made  no  distinc- 
tion between  any  different  portions  of  this  force,  or  recognized  any  such  portion  as 
"national  guard."  The  law  relating  to  the  subject,  Revised  Statutes,  title  16  sec- 
tions 1625,  1642,  etc.,  contemplates  but  a  single  integral  body  as  constituting  the 
militia  and  as  liable  to  be  called  out.  Under  theexistyjglaw,  the  'national  guard 
of  a  State  can  not  legally  be  called  out  as  such.  Upon  a  call,  the  governor  may  in- 
deed order  them  out,  as  neing  organized  and  available,  so  far  as  they  will  go  to  make 
up  the  number  of  the  militia  required.  (Ibid  ,  p.  520,  par.  7.) 

The  United  States  statutes  take  no  notice  of  "national  guard  '  as  such.  If  called 
out,  it  is  not  as  "national  guard,''  but  as  militia;  and  when  so  called  forth  or  in- 
cluded in  a  call,  it  must  be  governed  by  the  existing  laws  providing  for  the  organi- 
zation, discipline,  etc.,  of  the"  militia.  (Ibid.  par.  8.) 

The  "national  guard,"  so  called,  being  merely  militia,  can  not  (where  not  called 
forth)  be  "supported"  or  "maintained "  by  Congress,  which  is  authorized  by  the 
Constitution  to  '•support"  and  "maintain  '  the  Army  and  Navy  only.  So  officers  of 
the  national  guard  can  not  be  commissioned  by  the  President  without  a  violation  of 
the  Constitution,  which  "reserves  the  appointment  of  militia  officers  to  the  States 
respectively."  (Ibid.. par  10  ) 

The  act  of  February  28,  1895  (1  Stat.  L.,  424),  authorizing  the  President  under 
certain  circumstances  to  call  out  the  militia,  is  constitutional,  and  the  Presidentis 
the  final  .judge  of  the  emergency  instifying  such  call.  This  construction  necessarily 
results  from  the  nature  of  the  power  itself  and  from  the  manifest  object  contem- 
plated by  the  act  of  Congress  The  power  itself  is  to  be  exercised  upon  sudden 
emergencies,  upon  great  occasions  of  state,  and  under  circumstances  which  may  be 
vital  to  the  existence  of  the  Union.  A  promptand  unhesitating  obedience  to  orders 
is  indispensable  to  the  complete  attainment  of  the  object.  The  service  is  a  military 
service,  and  the  command  of  a  military  nature;  and  in  such  ease  every  delay  and 
every  obstacle  to  an  efficient  and  immediate  compliance  necessarily  tend  to  jeopard 
the  public  interests.  (Martin  v  Mott,  12  Wheat ,  19,  30.) 

Where  a  power  is  confided  to  the  President  by  law  the  presumption  is  that,  in  the 
exercise  of  that  power,  ho  has  pursued  the  law.  The  existence  of  an  exigency  justi- 
fying the  calling  out  of  the  militia  is  not  traversable,  and  need  not  be  averred.  It  is 
not  necessary  to  set  forth  the  orders  of  the  President;  it  is  sufficient  to  state  that 
the  call  of  the  governor  for  the  militia  was  in  obedience  to  them.  For  disobedience 
to  a  call  made  by  a  governor  for  the  militia,  in  pursuance  of  the  orders  of  the  Presi- 
dent, a  citizen  is  liable  to  be  tried  by  a  court-martial  organized  under  the  laws  of 
the  United  States.  (Ibid. ,33.) 

In  the  case  of  Houston  v.  Moore  (5  Wheat.,  1),  it  was  decided  that,  although  a  mili- 
tiaman, who  refused  to  obey  the  orders  of  the  President  calling  him  into  the  public 
service,  was  not,  in  the  sense  of  the  act  of  1795,  "employed  in  the  service  of  the 
United  States"  so  as  to  be  subject  to  the  Rules  and  Articles  of  War,  yet  that  he  was 
liable  to  be  tried  for  the  offense  under  the  fifth  section  of  the  same  act  by  a  court- 
martial  called  under  the  authority  of  the  United  States. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  457 

service.  Each  regiment  of  infantry  shall  have  one  colonel, 
one  lieutenant-colonel,  one  major,  one  adjutant,  (a  lieuten- 
ant,) one  quartermaster,  (a  lieutenant,)  one  surgeon  and 
two  assistant  surgeons,  one  sergeant-major,  one  regimental 
quartermaster-  sergeant,  one  regimental  commissary-ser- 
geant, one  hospital  steward  and  two  principal  musicians,  and 
shall  be  composed  of  ten  companies,  each  company  to  con- 
sist of  one  captain,  one  first  lieutenant,  one  second  lieuten- 
ant, one  first  sergeant,  four  sergeants,  eight  corporals,  two 
musicians,  one  wagoner,  and  from  sixty-four  to  eighty-two 
privates. 

1261.  They  shall  be  further  organized  into  divisions  of   ^u^C2™pS? 
three  or  more  brigades  each;  and  each  division  shall  have  °6Q9  juj3-  ^^ 
a  major-general,   three  aids  de-camp,   and  one  assistantc-2oo  8  e  v.i2i 
adjutant-  general  with  the  rank  of  major.    Each  brigade  sec.  i647,n.s. 
shall  be  composed  of  four  or  more  regiments,  and  shall 

have  one  brigadier  general,  two  aids-de  cainp,  one  assistant 
adjutant  -general  with  the  rank  of  captain,  one  surgeon, 
one  assistant-quartermaster,  one  commissary  of  subsistence, 
and  sixteen  musicians  as  a  band. 

1262,  Whenever  the  President  calls  forth  the  militia  of 


the  States,  to  be  employed  in  the  service  of  the  United  service  to  be 
States,  he  may  specify  in  his  call  the  period  for  which  such  2QJ  uty  17^1862,  c- 
service  will  be  required,  not  exceeding  nine  months,  and  597. 
the  militia  so  called  shall  be  mustered  in  and  continued  to 
serve  during  the  term  so  specified,  unless  sooner  discharged 
by  command  of  the  President. 

1263.  Every  officer,  non-commissioned  officer,  or  private    -Disobedience 

.  '  .  01  orders,  pen- 

of  the  militia,  who  fails  to  obey  the  orders  of  the  President  a%-.  2 
when  he  calls  out  the  militia  into  the  actual  service  of  the  3^  s.j>,  V^  i^p. 
United  States,  shall  forfeit  of  his  pay  a  sum  not  exceeding  c.  25,  8.  4,  y.'  12.  p'. 
one  year's  pay,  and  not  less  than  one  month's  pay,  to  be  withers  2  cr.j 

,    ,    J      .        f    J',         ,.      ,  ,.    .  V  ,331;   Houston  v. 

determined  and  adjudged  by  a  court-martial  ;  and  such  Moore,  5  wh.  i; 


officer  shall  be  liable  to  be  cashiered  by  a  sentence  of  court-  12   wi,    i 
martial,  and  be  incapacitated  from  holding  a  commission  Brock!  8324ase>  1 
in  the  militia  for  a  term  not  exceeding  twelve  months;  and    Sec-1649'R-s- 
such  non-commissioned  officer  and  private  shall  be  liable 
to  imprisonment,  by  a  like  sentence,  on  failure  to  pay  the 
fines  adjudged  against  him,  for  one  calendar  month  for 
every  twenty-five  dollars  of  such  fine. 

1264.  The  militia  when  called  into  the  actual  service  of   P»y,  »tion«, 

6tC. 

the  United  States,  shall,  during  their  time  of  service,  be  ^^.19,1836,0. 
entitled  to  the  same  pay,  rations,  clothing,  and  camp  equi-  July  29,  is'ei,  c! 
page  as  may  be  provided  by  law  for  the  Army  of  the  United  282. 

S(T.  J.OOU*  lv»  S* 

States. 


458  THE   MILITARY   LAWS   OF   THE    UNITED    STATES, 

when  pay  to     1265.  Whenever  the  militia  is  called  into  the  actual  serv- 

commence. 

9  8a3°'v2i  17408C' ice  of  tne  United  states>  their  Pav  sna11  be  deemed  to 
'see.  1651,' B.S.  commeuce  from  the  day  of  their  appearing  at  the  place  of 

battalion,  regimental,  or  brigade  rendezvous.1 

^Traveling   ai-     1266.  The  officers,  non-commissioned  officers,  musicians, 
44^as 'vY83  ?' c  art;incers?  an(i  privates  shall  be  entitled  to  one  day's  pay, 
Sec.'i652,  B.  s.  subsistence,  and  allowances  for  every  twenty  miles'  travel 
from  their  places  of  residence  to  the  place  of  general  ren- 
dezvous, and  from  the  place  of  discharge  back  to  their 
residence. 

o/h°orra8gee8and  "8e     1267.  The  officers  of  all  mounted  companies  in  the  militia 
i,ll?v\1JMi)f;  called  into  service  of  the  United  States  shall  each  be  enti- 
44,al '2!  v.  sfp6?.6'  tied  to  receive  forage,  or  money  in  lieu  thereof,  for  two 
sec.  1053,  B.  s.  ]lorses  wneil  they  actually  keep  private  servants,  and  for 
one  horse  when  without  private  servants,  and  forty  cents 
per  day  shall  be  allowed  for  the  use  and  risk  of  each  horse, 
except  horses  killed  in  battle  or  dying  of  wounds  received 
in  battle.    Each  non-commissioned  officer,  musician,  artifi- 
cer, and  private  of  such  mounted  companies  shall  be  enti- 
tled to  receive  forage  in  kind  for  one  horse,  with  forty  cents 
per  day  for  the  use  and  risk  thereof,  except  horses  killed  in 
battle,  or  dying  of  wounds  received  in  battle,  and  twenty- 
five  cents  per  day  in  lieu  of  forage  and  subsistence,  when 
the  same  is  furnished  by  himself,  or  twelve  and  a  half  cents 
per  day  for  either,  as  the  case  may  be. 

marcheto8rende°zf     1268.  The  expenses  incurred  by  marching  the  militia  of 

v°Fei>.  28, 1795,  c.  any  State  or  Territory  to  their  places  of  rendezvous,  in 

Aprv'2o',  me4,2*!  Pursuance  °f  a  requisition  of  the  President,  or  of  a  call 

^secfie^B.  s.  ma(ie  by  the  authority  of  any  State  or  Territory  and 

approved  by  him,  shall  be  adjusted  and  paid  in  like  manner 

as  the  expenses  incurred  after  their  arrival  at  such  places  of 

rendezvous,  on  the  requisition  of  the  President;  but  this 

provision  does  not  authorize  any  species  of  expenditure, 

previous  to  arriving  at  the  place  of  rendezvous,  which  is 

not  provided  by  existing  laws  to  be  paid  for  after  their 

arrival  at  such  place  of  rendezvous. 

tiotddi1  1269.  When  the  militia  in  the  military  service  of  the 

9,ta6,  vV™409:  United  States  are  employed  on  the  western  frontiers,  there 

sec.  1655,  B-s- shaii  be  anOwed  two  ounces  of  flour  or  bread,  and  two 

ounces  of  beef  or  pork,  in  addition  to  each  of  their  rations, 

and  half  a  pint  of  salt,  in  addition  to  every 'hundred  of 

their  rations. 

1  Unlike  a  volunteer  regiment,  where  the  muster -in  fixes  the  commencement  of  the 
time  of  actual  service,  it  is  not  essential  for  a  militia  organization  that  there  should 
be  a  formal  muster-in,  to  bring  it  into  the  actual  service  of  the  United  States.  The 
provision  of  the  act  of  1862  relating  to  the  muster-in  of  militia  is  directory  only. 
(Dig.  J.  A.  Gen.,  519,  par.  4.) 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES.  459 


1270.  When  any  officer,  non-commissioned  officer,  artifi-    Provision   % 

/  .  widows    etc.,  of 

cer,  or  private  of  the  militia  or  volunteer  corps  dies  in  the  th°*Q  wh<>  die  m 

service  of  the  United  States,  or  in  returning  to  his  place  44Mar-  19-  wse.  c. 

of  residence  after  being  mustered  out  of  service,  or  at  any   sec.io56,PR.s. 

time  in  consequence  of  wounds  received  in  service,  and 

leaves  a  widow,  or  if  no  widow,  a  child  or  children  under 

sixteen  years  of  age,  such  widow,  or  if  no  widow,  such 

child  or  children,  shall   be  entitled  to  receive  half  the 

monthly  pay  to  which  the  deceased  was  entitled,  at  the 

time  of  his  death,  during  the  term  of  five  years  ;  and  in 

case  of  the  death  or  intermarriage  of  such  widow  before 

the  expiration  of  five  years,  the  half-pay  for  the  remainder 

of  the  time  shall  go  to  the  child  or  children  of  the  dece- 

dent.   And  the  Secretary  of  the  Interior  shall  adopt  such 

forms  of  evidence,  in  applications  under  this  section  as  the 

President  may  prescribe. 

1271.  The  volunteers  or  militia,  who  have  been  received    volunteers, 

etc.,  to  suppress 

into  the  service  of  the  United  States,  to  suppress  Indian  Indian  depreda- 
depredations  in  Florida,  shall  be  entitled  to  all  the  benefits  benefit!  to.     a' 

,  ,.  Mar.  19,  1836,  c. 

which  are  conferred  on  persons  wounded  or  otherwise  dis-  44,  s.  4,  v.  5,  p.  7. 
abled  in  the  service  of  the  United  States. 

1272.  Courts  -martial  for  the  trial  of  militia  shall  be  com-  ^"^-martiai, 
nosed  of  militia  officers  onlv  1  Feb-  28-  1795,  c.  36,s.6.v.  i,  p.  424;  July  29, 

y  '  1861,  c.  25,  s  5.  v.  12.  p.  282        Sec.  1658,  R.  S. 

1273.  All  fines  assessed  under  the  provisions  of  law  con-  ,  Fines  assessed, 

how  to  be  levied. 

cerning  the  militia  or  volunteer  corps,  when  called  into  the  gFeb.  28,  1795.  c. 
actual  service  of  the  United  States,  shall  be  certified  by  the  Feb.'  2U8i3Po.  is,' 

s    1   v    2   p   797- 

presiding  officer  of  the  court-martial,  before  whom  they  are  July  29,1861,0.25', 

,  ,      ,       ,.   ,.         ,  .    ,     .     ,    .  ,  .    .     ,,         t    ,.       s.  6,  v.  12,  p.  282. 

assessed,  to  the  marshal  of  the  district  in  which  the  delm-    sec.  1059,  R.  s. 

quent  resides,  or  to  one  of  his  deputies,  and  to  the  Comp- 

troller of  the  Treasury,  who  shall  record  the  certificate  in 

a  book  to  be  kept  for  that  purpose.    The  marshal  or  his 

deputy  shall  forthwith  proceed  to  levy  the  fines  with  costs, 

by  distress  and  sale  of  the  goods  and  chattels  of  the  delin- 

quent, which  costs  and  the  manner  of  proceeding,  with 

respect  to  the  sale  of  the  goods  distrained,  shall  be  agree- 

able to  the  laws  of  the  State  in  which  the  same  may  be  in 

other  cases  of  distress.    And  where  any  non-commissioned 

officer  or  private  is  adjudged  to  suffer  imprisonment,  there 

being  no  goods  or  chattels  to  be  found  whereof  to  levy  the 

fines,  the  marshal  of  the  district  or  his  deputy  shall  com- 

mit such  delinquent  to  jail,  during  the  term  for  which  he  is 

so  adjudged  to  imprisonment,  or  until  the  fine  is  paid,  in 

1  Section  1658,  Revised  Statutes,  prescribes  that  "courts-martial  for  the  trial  of 
militia  shall  be  composed  of  militia  officers  only."  Held  that  the  enactment  applied 
also  in  principle  to  courts  of  inquiry  convened  in  the  militia,  and  that  officers  of  the 
Army  could  not,  for  purposes  of  instruction  or  assistance,  legally  be  detailed  to  be 
associated  with  militia  officers  as  members  of  such  courts.  (Dig.  Opin.  J.  A.  Gen., 
521,  par.  11.  ) 


460  THE   MILITARY   LAWS   OF   THE    UNITED   STATES. 

the  same  manner  as  other  persons  condemned  to  fine  and 
imprisonment  at  the  suit  of  the  United  States  may  be 
committed. 

thI0Trea8ud4no°f     1274   The  marshal  shall  pay  all  fines  collected  by  him  or 

states  U  n  1  1  e  d  n*s  deputy,  under  the  authority  of  the  preceding  section, 

36FsVv'  i79425-  mto  the  Treasury  of  the  United  States,  within  two  months 

Feb  2.1813,0.^8.'  after  he  has  received  the  same,  deducting  five  per  centum 

July  29,'i86i,  c!  for  his  compensation  ,  and  in  case  of  failure,  it  shall  be  the 

P  duty  of  the  Comptroller  of  the  Treasury  to  give  notice  to 

'the  district  attorney  of  the  United  States,  who  shall  pro- 

ceed against  the  marshal  in  the  district  court,  by  attach- 

ment, for  the  recovery  of  the  same. 

s  12?5.  That  the  sum  of  four  hundred  thousand  dollars  is 
,1*!  hereby  annually  appropriated,  to  be  paid  out  of  any  money 
Apr  129*  2i8i649c;  *n  tue  Treasury  not  otherwise  appropriated,  for  the  purpose 
32o  MarV3  is??'  °^  Provic^u^  arms,ordnance  stores,  quartermaster's  stores, 
c  133,  s.  3,v.'i8,  p!  and  camp  equipage  for  issue  to  the  militia.1  Act  of  February, 

455  ;  Feb.  12.  1887. 


,.. 

Apportion-  1276.  That  said  appropriation  shall  be  apportioned  among 
msec'.2,tWd.  the  several  States  and  Territories  under  the  direction  of  the 
Secretary  of  War,  according  to  the  number  of  Senators 
and  Representatives  to  which  each  State  respectively  is 
entitled  in  the  Congress  of  the  United  States,  and  to  the 
Territories  and  District  of  Columbia  such  proportion  am. 
under  such  regulations  as  the  President  may  prescribe  : 

states  having  Provided,  however,  That  no  State  shall  be  entitled  to  the 

uniformed    mili-  ' 

tia  only,  entitled,  benefits  of  the  appropriation  apportioned  to  it  unless  the 

number  of  its  regularly  enlisted,  organized,  and  uniformed 

active  militia  shall  be  at  least  one  hundred  men  for  each 

Senator  and  Eepresentative  to  which  such  State  is  entitled 

in  the  Congress  of  the  United  States.     And  the  amount  of 

said  appropriation  which  is  thus  determined  not  to  be  avail- 

able shall  be  covered  back  into  the  Treasury.2    Sec.  2,  ibid. 

wa?crtotadirect     1277.  That  the  purchase  or  manufacture  of  arms,  ord- 

purchaseofarms,  nance  stores,  quartermaster's  stores,  and  camp  equipage 

sec.  3,  ibid.      for  the  militia  under  the  provisions  of  this  act  shall  be  made 

under  the  direction  of  the  Secretary  of  War,  as  such  arms, 

ordnance  and  quartermaster's  stores  and  camp  equipage 

are  now  manufactured  or  otherwise  provided  for  the  use  of 

the  Regular  Army,  and  they  shall  be  receipted  for  and  shall 

remain  the  property  of  the  United  States,  and  be  annually 

1  The  cost  of  transporting  arms  and  equipments  to  the  points  designated  by  proper 
authority  for  issue  to  the  militia  of  the  several  States  and  Territories  .and  the  Dis- 
trict of  Columbia  is  an  expenditure  incident  to  the  object  of  the  appropriation 
"  Arming  and  equipping  the  militia,  "made  by  the  act  of  February  12,  1887  (24  Stat.  L., 
401,  402),  and  is  therefore  properly  chargeable  to  it,-unless  provision  is  specifically 
made  therefor.  (3  Dig.  Comp.  Dec.,  356.) 

*  For  provisions  of  statutes  respecting  certain  special  issues  of  arms  and  ammuni- 
tion to  the  militia  of  the  States  and  Territories,  see  paragraphs  1290  and  1291  post. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  461 

accounted  for  by  the  governors  of  the  States  and  Territories, 
for  which  purpose  the  Secretary  of  War  shall  prescribe  and 
supply  the  necessary  blanks  and  make  such  regulations  as 
he  may  deem  necessary^  to  protect  the  interest  of  the  United 
States.1  Sec.  <?,  ibid. 

1278.  That   all   arms,  equipments,  ordnance   stores,  or    Unserviceable 

,  ,  .,11         i      11  arms,  etc. 

tents  which  may  become  unserviceable  or  unsuitable  shall  sec.4,ibid. 
be  examined  by  a  board  of  officers  of  the  militia,  and  its 
report  shall  be  forwarded  by  the  governor  of  the  State  or 
Territory  direct  to  the  Secretary  of  War,  who  shall  direct 
what  disposition,  by  sale  or  otherwise,  shall  be  made  of 
them;  and,  if  sold,  the  proceeds  of  such  sale  shall  be  cov- 
ered into  the  Treasury  of  the  United  States.  Sec.  4,  ibid. 

1279.  All  the  arms  procured  in  virtue  of  any  appropria-    Distribution  of 

,,.-1110          ,  „  .  i  .  arms    to    States, 

tion  authorized  by  law  for  the  purpose  or  providing  arms  etc. 

and  equipments  for  the  whole  body  of  the  militia  of  the  5^p3^.Yp°49o  'j 

United  States  shall  be  annually  distributed  to  the  several  w*'*\  vf5io,  £ 

States  of  the  Union  according  to  the  number  of  their  63gec>1667  B>s> 

Representatives  and  Senators  in  Congress,  respectively; 

and  all  arms  for  the  Territories  and  for  the  District  of 

Columbia  shall  be  annually  distributed  in  such  quantities, 

and  under  such  regulations,  as  the  President  may  prescribe. 

All  such  arms  are  to  be  transmitted  to  the  several  States 

and  Territories  by  the  United  States. 

1280.  The  Secretary  of  War  is  authorized  and  directed    Distribution  to 

,  .    ,    .,  ,      0,     ,  ,  .  ,  ,,  States  which  had 

to  distribute  to  such  States  as  did  not  receive  the  same,  not  received 
their  proper  quota  of  arms  and  military  equipments  for  each          '™ 


year,  from  eighteen  hundred  and  sixty-two  to  eighteen  28^vTi7,j>1X.c' 
hundred  and  sixty-nine,  under  the  provisions  of  section    sec.i67o,n.s. 
sixteen   hundred   and   .sixty-two:   Provided,  That  in   the 
organization  and  equipment  of  military  companies  and 
organizations  with  such  arms,  no  discrimination  shall  be 
made  between  companies  and  organizations  on  account  of 
race,  color,  or  former  condition  of  servitude. 

1281.  That  all  issues  of  arms  and  other  ordnance  stores  Arms,  etc.,  is- 
which  were  made  by  the  War  Department  to  the  States  and  Territories 
and  Territories  between  the  first  day  of  January,  eighteen  flSTaSi  Apr!  9] 


hundred  and  sixty-one,  and  the  ninth  day  of  April,  eight- 

een  hundred  and  sixty-five,  under  the  act  of  April  twenty-110^  c  55  v  2, 

third,  eighteen  hundred  and  eight,  and  charged  to  theP-|^-3  Mar  3 

States  and  Territories,  having  been  made  for  the  mainte-1^,  v.  is,  p.  455.' 

nance  and  preservation  of  the  Union,  and  properly  charge- 

able to  the  United  States,  the  Secretary  of  War  is  hereby    sec.ieei,B.s. 

authorized,  upon  a  proper  showing  by  such  States  of  the 

faithful  disposition  of  said  arms  and  ordnance  stores,  in  the 

service  of  the  United  States  in  the  suppression  of  the  war 

1For  provisions  of  statutes  respecting  certain  special  issues  of  arms  and  ammuni- 
tion to  the  militia  of  the  States  and  Territories,  see  paragraphs  1290  and  1291,  pott. 


462      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

states6 etc  *  *  °  of  tne  rebellion? to  credit  the  several  States  and  Territories 
with  the  sum  charged  to  them  respectively  for  arms  and 
other  ordnance-stores  which  were  issued  to  them  between 
the  aforementioned  dates,  and  charged  against  their  quotas 
under  the  law  for  arming  and  equipping  the  militia:  Pro- 
vided, That  it  shall  be  the  duty  of  the  Secretary  of  War, 
before  making  a  credit  to  any  of  said  States  and  Territories, 
to  investigate  and  ascertain,  so  nearly  as  he  can,  the  dispo- 
sition made  by  each  of  said  States  and  Territories  of  said 
arms  and  ordnance-stores;  and,  if  he  shall  find  that  any  of 
said  arms  or  ordnance-stores  have  been  sold  or  otherwise 
misapplied,  to  refuse  a  credit  to  such  State  or  Territory  for 
so  much  of  said  arms  and  ordnance  stores  as  have  been  sold 
or  misapplied;  and  the  amount  thereof  shall  remain  a 
charge  against  said  State  or  Territory,  the  same  as  if  this 
Quota  of  rebel- act  had  not  been  passed:  And  provided  further.  That  so 

liou-s    States    of  * 

arms,  appropria- much  of  the  appropriations  between  the  nrst  or  January, 

tion    to    be  cov-     .  -,       .     .  -,     ,,  .     ,,        «     , 

eredin.  eighteen  hundred  and  sixty-one,  and  the  ninth  of  April, 

eighteen  hundred  and  sixty-five,  under  the  act  of  April 
twenty-third,  eighteen  hundred  and  eight  herein  referred 
to,  as  would  have  been  used  for  the  purchase  of  arms  to  be 
distributed  to  the  several  States  that  were  in  rebellion, 
shall  be  covered  into  the  Treasury  of  the  United  States.1 
Sec.  3,  act  of  March  5,  1875  (18  Stat.  L.,  455}. 
Repeal  of  law  1282.  That  so  much  of  section  three  of  an  act  making 

requiring 

amounts  for  pur- appropriations  for  the  support  of  the  Army  for  the  fiscal 

chase    of    arms  . 

for  states  while  year  ending  June  thirtieth,  eighteen  hundred  and  seventy- 
covered  into  the  six,  and  for  other  purposes,  approved  March  third,  eight- 
Mar"  3^1887,  v.  ceii  hundred  and  seventy-five,  as  provides  that  so  much  of 
^lajp. 455.     the  appropriations  between  the  first  of  January,  eighteen 
v.  2,  p.  490.       hunted  and  sixty-one,  and  the  ninth  of  April,  eighteen 
hundred  and  sixty-five,  under  the  act  of  April  twenty- 
third,  eighteen  hundred  and  eight,  therein  referred  to,  as 
would  have  been  used  for  the  purchase  of  arms  to  be  dis- 
tributed to  the  several  States  that  were  in  rebellion,  shall 
be  covered  into  the  Treasury  of  the  United  States,  be,  and 
the  same  is  hereby,  repealed.     Act  of  March  3,  1887  (24 
Stat.  L.,  551). 

Appropriation     1283.  That  the  cost  to  the  Ordnance  Department  of  all 
sePt.22,i888,v.  ordnance  and  ordnance  stores  issued  to  the  States,  Terri- 
tories, and  District  of  Columbia,  under  the  act  of  Febru- 
ary twelfth,  eighteen  hundred  and  eighty-seven,  shall  be 

i  The  act  of  March  3,  1875  (18  Stat.  L.,  455),  authorized  the  Secretary  of  War  to 
credit  the  several  States  and  Territories  with  arms  drawn  by  them  between  January 
1,  1861,  and  April  23,  1868,  and  used  for  the  suppression  of  the  rebellion.  The  act  of 
March  3,  1887  (24  Stat.  L.,  551),  repealed  so  much  of  the  act  of  March  3,  1875,  as 
required  the  unexpended  balances  of  the  appropriations  for  the  purchase  of  arms  for 
distribution  to  the  States  in  rebellion  to  be  covered  into  the  Treasury. 


THE    MILITARY    LAWS   OF    THE    UNITED    STATES.  463 

credited  to  the  appropriation  for  "  manufacture  of  arms  at 
national  armories,"  which  appropriation  for  eighteen  hun- 
dred and  eighty-nine  and  thereafter  shall  be  available  until 
exhausted.  Act  of  September  22, 1888  (25  Stat.  L.,  487). 

1284.  The  permanent  annual  appropriation  made  by  the  propn™tionntfaopr 
act  of  April  twenty-third,  eighteen  hundred  and  eight,  Jo™^!  8militia 
designated  as  section  sixteen  hundred  and  sixty-one  of  the   J;,24'^  *  jj^  v 
Eevised  Statutes,  and  which  was  increased  to  four  hun- 28>  P-  406- ' 
dred  thousand  dollars  by  the  act  of  February  twelfth? 
eighteen  hundred  and  eighty  seven,  being  for  the  procure- 
ment of  ordnance  and  ordnance  stores  and  quartermaster's 

stores  and  camp  equipage  for  the  use  of  the  militia  of  the 
country,  shall  not  lapse  with  the  end  of  any  fiscal  year  nor 
be  turned  into  the  surplus  fund,  but  shall  remain  a  perma- 
nent appropriation  and  be  available  for  the  several  States 
and  Territories  and  District  of  Columbia,  until  expended 
as  provided  in  said  acts,  or  otherwise  disposed  of  by  Con- 
gress.1 Act  of  August  18,  1894  (28  Stat.  L.,  406). 

1285.  That  the  Secretary  of  War  is  hereby  authorized,    issues  of  ord 

,    ,  •        ,.  .  .    ...  „    A,  nance    for    prac- 

at  his  discretion,  to  issue,  on  the  requisition  of  the  gov-  tice    m    heavy 

„  ,         ,       .  .  artillery  drill. 

ernor  of  a  State  bordering  on  the  sea  or  gulf  coast,  and    sec.  2,  May  w, 

having  a  permanent  camping  ground  for  the  encampment 1882>  v  22>p*93' 

of  the  militia  not  less  than  six  days  annually,  two  heavy 

guns  and  four  mortars,  with  carriages  and  platforms,  if 

such  can  be  spared,  for  the  proper  instruction  and  practice 

of  the  militia  in  heavy  artillery  drill,  and  for  this  purpose 

a  suitable  battery  for  these  cannon  will  be  constructed; 

and  for  said  construction  and  the  transportation  of  said 

cannon,  and  so  forth,  the  sum  of  five  thousand  dollars  is 

hereby  appropriated  for  supplying  each  State  that  may  so 

apply.     Sec.  2,  act  of  May  19, 1882  (22  Stat.  L.,  93). 

MILITIA   OF   THE  DISTRICT   OF   COLUMBIA. 

1286   That  every  able-bodied  male  citizen  resident  within    Militia  of  the 
the  District  of  Columbia,  of  the  age  of  eighteen  years  and  JJmbi*   °f 
under  the  age  of  forty  five  years,  excepting  persons  ex  -  25^772. '  1889'v' 
empted    by  section    two,   and    idiots,   lunatics,   common 
drunkards,  vagabonds,  paupers,  and  persons  convicted  of 

1  By  several  statutes  special  authority  is  conferred  upon  the  Secretary  of  War  to 
adjust  the  accounts  of  particular  States  and  Territories  for  issues  of  arm's  and  muni- 
tions of  war.  For  such  provisions  as  to  the  State  of  Kansas,  see  the  acts  of  August 
15, 1876  (19  Stat.  L.,  206),  July  28, 1886  (24  Stat.  L.,  159) ;  as  to  the  Territory  of  Mon- 
tana, see  the  act  of  February  15, 1887  (24  Stat.  L.,  404) ;  as  to  the  Territory  of  Dakota, 
see  the  act  of  February  28, 1887  (24  Stat.  L.,  432) ;  as  to  the  State  of  Washington,  see 
the  act  of  June  10, 1890  (26  Stat.  L.,  130) ;  as  to  the  State  of  Colorado,  see  the  act  of 
August  4, 1886  (24  Stat,  L.,  219).  The  act  of  January  16, 1889  (25  Stat.  L.,  646),  author- 
ized the  Secretary  of  War  to  issue  additional  arms  and  military  stores  to  the  Terri- 
tory of  Montana;  the  same  statute  authorized  a  similar  issue  to  the  State  of  Oregon. 
The  joint  resolution  of  June  7, 1878  (20  Stat.  L.,  252),  authorized  the  issue  of  1,000 
stand  of  arms,  with  50  cartridges  to  each,  to  each  of  the  Territories,  in  addition  to 
thosealready  authorized  by  law.  Seealso  the  title  "Arms,  Armories,  and  Arsenals" 
in  the  chapter  entitled  THE  OEDNANCK  DEPARTMENT. 


464  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 


to  he  any  infamous  crime,  shall  be  enrolled  in  the  militia.  Per- 
sons so  convicted  after  enrollment  shall  forthwith  be  dis- 
enrolled;  and  in  all  cases  of  doubt  respecting  the  age  of  a 
person  enrolled,  the  burden  of  proof  shall  be  upon  him. 

Exemptions.  gECe  2.  That  in  addition  to  the  persons  exempted  from 
enrollment  in  the  militia  by  the  general  laws  of  the  United 
States,  the  following  persons  shall  also  be  exempted  from 
enrollment  in  the  militia  of  the  District  of  Columbia, 
namely:  Officers  of  the  government  of  the  District  of 
Columbia;  judges  and  officers  of  the  courts  of  the  District 
of  Columbia;  officers  who  have  held  commissions  in  the 
Regular  or  Volunteer  Army  or  Navy  of  the  United  States; 
officers  who  have  served  for  a  period  of  five  years  in  the 
militia  of  the  District  of  Columbia  or  of  any  State  of  the 
United  States;  ministers  of  the  gospel;  practicing  physi- 
cians; conductors  and  engine-drivers  of  railroad  trains; 
members  of  the  paid  police  and  fire  department. 

Assessors  to     gEC  3    T;h at  the  Commissioners  of  the  District  of  Co- 

enroll. 

lumbia  shall  provide  for  the  enrollment  of  the  militia,  and 
for  this  purpose  may  require  the  assessors  of  taxes,  at  the 
same  time  they  are  engaged  in  taking  the  assessment  of 
valuation  of  real  and  personal  property,  to  make  a  list  of 
persons  liable  to  enrollment;  and  such  record  shall  be 
deemed  a  sufficient  notification  to  all  persons  whose  names 
are  thus  recorded  that  they  have  been  enrolled  in  the 
militia.  Immediately  after  the  completion  of  each  enroll- 
ment they  shall  furnish  the  commanding-general  of  the 
militia  with  a  copy  of  the  same. 

Duty.  gEC>  4    That  the  enrolled  militia  shall  not  be  subject  to 

any  duty  except  when  called  into  the  service  of  the  United 
States,  or  to  aid  the  civil  authorities  in  the  execution  of 
the  laws  or  suppression  of  riots. 

into  SEC.  5.  That  whenever  it  shall  be  necessary  to  call  out 
any  portion  of  the  enrolled  militia  the  commauder-iu-chief 
shall  order  out,  by  draft  or  otherwise,  or  accept  as  volun- 
teers as  many  as  required.  Every  member  of  the  enrolled 
militia  who  volunteers,  or  who  is  ordered  out  or  drafted 
under  the  provisions  of  this  act,  who  does  not  appear  at 
the  time  and  place  designated,  may  be  arrested  by  order 
of  the  commanding  general  and  be  tried  and  punished  by 
a  court-  martial.  The  portion  of  the  enrolled  militia  ordered 
out  or  accepted  shall  be  mustered  into  service  for  such 
period  as  may  be  required,  and  the  commanding  general 
may  assign  them  to  existing  organizations  of  the  active 
militia,  or  may  organize  them  as  the  exigencies  of  the  occa- 
sion may  require. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


465 


SEC.  6.  That  the  President  of  the  United  States  shall 
be  the  commander-in-chief  of  the  militia  of  the  District  of 
Columbia. 

SEC.  7.  That  there  shall  be  appointed  and  commissioned 
by  the  President  of  the  United  States  a  commanding  gen- 
eral of  the  militia  of  the  District  of  Columbia,  with  the 
rank  of  brigadier-general,  who  shall  hold  office  until  his 
successor  is  appointed  and  qualified,  but  may  be  removed 
at  any  time  by  the  President. 

SEC.  8.  That  the  staff  of  the  militia  of  the  District  of 
Columbia  shall  be  appointed  and  commissioned  by  the 
President,  and  hold  office  until  their  successors  are  ap- 
pointed and  qualified,  but  may  be  removed  at  any  time  by 
the  President.  It  shall  consist  of  one  adjutant  general, 
with  the  rank  of  lieutenant-colonel  ;  one  inspector-general, 
one  quartermaster-general,  one  commissary-general,  one 
chief  of  ordnance,  one  chief  engineer,  one  surgeon-general, 
one  judge-advocate-general,  and  one  inspector-  general  of 
rifle  practice,  each  with  the  rank  of  major;  and  four  aids- 
de-camp,  each  with  the  rank  of  captain.  The  commanding 
general  may  appoint  a  non-commissioned  staff  of  the  militia, 
to  consist  of  one  sergeant-major,  one  quartermaster-ser- 
geant, one  commissary  -sergeant,  one  ordnance  sergeant7 
two  staff  sergeants,  one  hospital-  steward,  one  color-ser- 
geant, and  one  sergeant-bugler. 

SEC.  9.  That  the  President  may  assign  an  officer  of  the 
Army  to  act  as  adjutant  general  of  the  militia  of  the  Dis- 
trict of  Columbia,  who,  while  so  assigned,  shall  be  com- 
missioned as  such  and  be  subject  to  the  orders  of  the  com- 
manding general  and  the  provisions  of  this  act:  Provided, 
hoivever,  That  the  officer  so  assigned  shall  receive  no  other 
pay  or  emolument  than  that  to  which  his  rank  in  the  Army 
entitles  him  when  on  detached  service.1 

THE  ACTIVE  MILITIA:  ITS    ORGANIZATION. 


chief. 


staffoffi<*r»- 


"mi8' 


Active  militia. 


SEC.  10.  That  the  active  militia  shall  be  composed  of   organization 

1  of  national 

volunteers,  and  shall  be  designated  the  National  Guard  of  guard. 
the  District  of  Columbia;  and  in  case  the  militia  of  the 
District  of  Columbia  are  called  into  the  service  of  the 
United  States,  or  required  for  the  suppression  of  riots,  or 
to  aid  civil  officers  in  the  execution  of  the  laws,  shall  be 
the  first  to  be  ordered  into  service. 

SEC.  11.  That  in  time  of  peace  the  National  Guard  shall 

*Held  that  it  would  not  be  within  the  prohibitions  of  section  1222,  Revised  Stat 
utes,  bnt  legal,  to  detail  an  officer  of  the  Army  to  act  as  adjutant-general  of  the 
militia  of  the  District  of  Columbia,  there  being  no  such  office  established  by  law; 
that  such  officer,  in  so  acting,  would  be  performing  military  service  and  would  not 
be  holding  a  "civil  office."  (Dig.  Opiu.  J.  A,  G.,  521,  par.  16.) 

1919  -  30 


466  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

consist  of  not  more  than  twenty-eight  companies  of  infan- 
try, which  shall  be  arranged  by  the  commanding  general 
into  such  regiments,  battalions,  and  unattached  companies 
as  he  may  deem  expedient;  one  battery  of  light  artillery; 
one  signal  corps  ;  one  ambulance  corps  ;  one  engineer  corps  ; 
one  band  of  music,  and  one  corps  of  field  musicians. 

Regiments  o  f  SEC.  12.  That  regiments  of  infantry  shall  consist  of  three 
battalions  ;  and  to  each  regiment  there  shall  be  one  colonel 
and  one  lieutenant-colonel,  and  a  staff  to  consist  of  one 
surgeon,  one  adjutant,  one  quartermaster,  one  inspector 
of  rifle  practice,  and  one  chaplain,  each  with  the  rank  of 
captain;  and  a  non-commissioned  staff,  consisting  of  one 
sergeant-major,  one  quartermaster-sergeant,  one  commis- 
sary-sergeant, and  one  hospital  steward. 

infantry  bat-  SEC.  13.  That  battalions  of  infantry  shall  consist  of  four 
companies;  and  to  each  battalion  there  shall  be  one  major; 
and  a  staff  consisting  of  one  surgeon,  one  adjutant,  one 
quartermaster,  and  one  inspector  of  rifle  practice,  each 
with  the  rank  of  first  lieutenant;  and  a  non-commissioned 
staff,  consisting  of  one  sergeant-major,  one  quartermaster- 
sergeant,  and  one  hospital-steward. 

infantry  com-  SEC.  14.  That  to  each  company  of  infantry  there  shall  be 
one  captain,  one  first  lieutenant,  one  second  lieutenant,  one 
first  sergeant,  four  sergeants,  one  corporal  to  each  ten  pri- 
vates, and  not  more  than  eighty-  seven  privates;  and  the 
minimum  number  of  enlisted  men  shall  be  forty. 

^Artillery  bat-  SEC.  15.  That  the  battery  of  light  artillery  shall  have 
not  less  than  four  nor  more  than  six  guns.  To  four  guns 
there  shall  be  one  captain,  two  first  lieutenants,  one  second 
lieutenant,  one  first  sergeant,  one  quartermaster-sergeant, 
five  sergeants,  eight  corporals,  two  buglers,  and  not  more 
than  eighty-two  privates;  and  the  minimum  number  of 
enlisted  men  shall  be  fifty-  seven.  To  more  than  four  guns 
there  shall  be,  for  each  additional  gun,  one  sergeant,  two 
corporals,  and  not  more  than  twenty  nor  less  than  ten  pri- 
vates; for  two  additional  guns  there  shall  be  one  additional 
second  lieutenant. 


iancfnanda™nbli      ^E0*  ^'  ^^a^  ^°  eac^  signal  corps,  ambulance  corps,  and 
neer  corps.     '  engineer  corps,  there  shall  be  one  first  lieutenant,  two  ser- 
geants, two  corporals,  and  not  more  than  thirty-two  nor 
less  than  fourteen  privates. 

Band.  gEc.  17.  That  the  band  of  music  shall  consist  of  one 

chief  musician,  two  sergeants,  two  corporals,  and  thirty- 
two  privates;  and  the  corps  of  field  music  of  one  principal 
musician,  two  sergeants,  two  corporals,  and  thirty-two 
privates.  The  chief  musician,  principal  musician,  and 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  467 

other  non-commissioned  officers  of  the  band  and  field  music 
shall  be  appointed  by  the  commanding  general. 

SEC.  18.  That  when  any  company  of  the  National  Guard 
shall,  for  a  period  of  not  less  than  ninety  days,  contain 
less  than  the  minimum  number  of  enlisted  men  prescribed 
by  this  act,  or  upon  a  duly  ordered  inspection,  shall  be 
found  to  have  fallen  below  a  proper  standard  of  efficiency, 
the  commanding  general  may  either  disband  such  company 
or  consolidate  it  with  any  other  company  of  the  National 
Guard,  and  grant  an  honorable  discharge  to  the  supernu- 
merary officers  and  non-commissioned  officers  produced  by 
such  consolidation.  Officers  and  enlisted  men  discharged 
by  reason  of  such  disbanding  or  consolidation  and  at  any 
time  thereafter  re-entering  the  service  shall  have  allowed 
to  them,  as  part  of  their  term  of  service,  the  time  already 
served. 

ELECTION,     APPOINTMENT,     AND     DISCHARGE     OP     COMMISSIONED  Commissioned 

officers. 
OFFICERS. 

SEC.  19.  That  all  officers  shall  be  commissioned  by  the  Commission. 
President  of  the  United  States.  In  time  of  peace,  or  when 
not  in  the  service  of  the  United  States,  they  shall  pre- 
viously be  elected  or  nominated  as  herein  provided.  No 
person  commissioned  as  an  officer  shall  assume  such  rank, 
or  enter  upon  the  duties  of  the  office  to  which  he  may  be 
commissioned,  until  he  has  accepted  such  commission  and 
taken  such  oath  or  affirmation  as  may  be  prescribed.  Oath- 

SEC.  20.  That  the  staff  officers  of  a  regiment  or  battalion    staff  officers. 
shall  be  nominated  by  the  permanent  commander  thereof. 

SEC.  21.  That  field  officers  of  regiments  or  battalions.  Field  officers. 
shall  be  nominated  by  the  commanding  general.    Captains  ce£sompany  offi' 
and  lieutenants  of  companies  shall  be  elected  by  the  written 
votes  of  the  enlisted  men  of  the  respective  companies.1 

SEC.  22.  That  elections  of  officers  shall  be  ordered  and    Elections. 
held  under  such  regulations  as  may  be  prescribed  by  the 
commanding  general. 

SEC.  23.  That  every  person  accepting  an  election  or  nom-  Examinations, 
ination  as  an  officer  shall  appear  before  an  examining  board, 
to  be  appointed  by  the  commanding  general,  which  board 
shall  examine  said  officer  as  to  his  military  and  other  qual- 
ifications. If  any  officer  shall  fail  to  appear  before  the 
board  of  examination  within  thirty  days  after  being  notified, 

'Section  21  of  the  act  of  March  1,  1889,  reorganizing  the  District  of  Columbia 
militia,  requires  that  captains  and  lieutenants  of  companies  shall  be  elected  by  the 
enlisted  men  of  the  same.  Held  that  this  enactment  would  prevent  the  assignment 
to  a  company  of  an  officer  not  first  elected  thereby.  So  that  it  would  require  that 
such  officers  be  appointed  as  officers  of  the  particular  companies  by  which  they  had 
been  elected,  and  would  not  permit  of  their  appointment  simply  to  the  arm  of  service, 
aa  in  the  Army,  (Dig,  Opin,  J ,  A,  Gen.,  22,  par,  17.) 


468  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

or  shall  fail  to  pass  a  satisfactory  examination,  the  fact 
shall  be  certified  by  the  board  to  the  commanding  gen- 
eral, who  shall  thereupon  declare  the  election  or  nomi- 
nation of  such  officer  null  and  void.  If,  in  the  opinion  of 
the  board  such  officer  is  competent,  and  otherwise  qualified, 
they  shall  certify  the  fact  to  the  commanding  general,  who 
shall  thereupon  recommend  him  to  the  President  for  com- 
mission. 

Discharges.  SEC.  24.  That  a  commissioned  officer  may  be  honorably 
discharged — 

Upon  tender  of  resignation ; 

Upon  disbandment  of  the  organization  to  which  he 
belongs ; 

Upon  report  of  a  board  of  examination,  or  for  failure  to 
appear  before  such  board  when  ordered. 

He  maybe  dismissed  upon  the  sentence  of  a  court-martial ; 
conviction  in  a  court  of  justice  of  an  infamous  offense. 

Non-com  mi s- THE  APPOINTMENT  AND   REDUCTION  OF  NON-COMMISSIONED   OFFICERS, 
sioned  officers. 

Appointment.  SEC  25.  That  non-commissioned  staff  officers  shall  be 
appointed  by  the  permanent  commander  of  the  organiza- 
tion to  which  they  belong;  and  permanent  commanders  of 
battalions  shall  appoint  the  non-commissioned  officers  of 
companies,  upon  the  written  nomination  of  the  respective 
captains;  but  they  may  withhold  such  appointment  if,  in 
their  judgment,  there  be  proper  cause;  non-commissioned 
officers  of  unattached  companies  shall  be  appointed  by 
their  respective  captains.  The  permanent  commander  of 
any  battalion  or  unattached  company  may  reduce  to  the 
'ranks  any  company  non-commissioned  officers  of  his  com- 
mand. 

Enlistment.  ENLISTMENT  AND  DISCHARGE   OF    SOLDIERS. 

Term.  SEC.  26.  Enlistment  in  the  National  Guard  shall  be  for 

the  term  of  three  years:  Provided,  however,  That  any  sol- 
dier who  may  have  received  an  honorable  discharge,  by 

_  .  reason  of  the  expiration  of  his  term  of  service,  may,  within 

thirty  days  thereafter,  re-enlist  for  a  term  of  one,  two,  or 
three  years,  to  date  from  the  expiration  of  his  previous 
term.  All  terms  of  service,  except  in  case  of  re-inlistmeut, 
shall  commence  at  noon  on  the  day  of  enlistment,  and  ex- 

Oath,etc.        pife  a*  noon  on  the  day  of  discharge. 

SEC.  27.  Every  person  enlisting  in  the  National  Guard 
shall  sign  an  enlistment  paper  which  shall  contain  an  oath 
of  allegiance  to  the  United  States.  The  requisites  and 
regulations  for  enlistment  and  the  form  of  enlistment  paper 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  469 

and  oath  for  enlisting  men,  shall  be  prescribed  by  the  com- 
manding general. 

SEC.  28.  That  no  enlisted  man  shall  be  honorably  dis-    Discharges: 

Honorable. 

charged  before  the  expiration  of  his  term  of  service,  except 
by  order  of  the  commanding  general,  and  for  the  following 
reasons  : 

Upon  his  own  application,  approved  by  the  commanding 
officer  of  his  company,  and  by  superior  commanders; 

Upon  removal  from  the  District; 

Upon  disability,  established  by  certificate  of  medical 
officer  ; 

To  accept  promotion  by  commission  ; 

Whenever,  in  the  opinion  of  the  commanding  general,    Dishonorable. 
the  interest  of  the  service  demand  such  discharge. 

SEC.  29.  That  enlisted  men  shall  be  dishonorably  dis- 
charged by  order  of  the  commanding  general: 

To  carry  out  the  sentence  of  a  court-martial; 

Upon  conviction  of  felony  in  a  civil  court; 

Upon  expulsion  from  his  company,  in  accordance  with  its 
by-laws  or  regulations; 

Upon  discovery  of  re-enlistment  after  previous  dishon-    certificate  of 

,,       ,.      T  discharge. 

orable  discharge. 

SEC.  30.  That  every  soldier  discharged  from  the  service 
of  the  District  shall  be  furnished  with  a  certificate  of  such 
discharge,  which  shall  state  clearly  the  reasons  therefor. 
Dishonorable  discharges  will  have  the  word  "dishonor- 
able" written  or  printed  diagonally  across  their  faces,  in 
large  characters,  with  red  ink,  and  the  re-enlistment  clause 
will  be  erased  by  a  line. 

ARMS,    UNIFORMS,   AND  EQUIPMENTS.  Arms,  etc. 

SEC.  31.  That  the  Uniforms,  arms,  and  equipments  of 
the  National  Guard  shall  be  the  same  as  prescribed  and 
furnished  to  the  army  of  the  United  States.  Every  organ. 
izatioii  of  the  National  Guard  shall  be  provided  with  such 
ordnance  and  ordnance  stores,  clothing,  camp  and  garrison 
equipage,  quartermaster's  stores,  medical  supplies,  and 
other  military  stores,  as  may  be  necessary  for  the  proper 
training  and  instruction  of  the  force  and  for  the  proper 
performance  of  the  duties  required  under  this  act.  Such 


....         .  ,     A  Secretary  of  War. 

property  shall  be  issued  from  the  stores  and  supplies 
appropriated  for  the  use  of  the  Army,  upon  the  approval 
and  by  the  direction  of  the  Secretary  of  War,  to  the  com- 
manding general,  upon  his  requisitions  for  the  same.  The 
property  so  issued  shall  remain  and  continue  to  be  the 
property  of  the  United  States,  and  shall  be  accounted  for 


470  THE  MILITARY   LAWS   OF   THE   UNITED   STATES. 

by  the  commanding  general  at  such  times,  in  manner,  and 
on  such  forms,  as  the  Secretary  of  War  may  require.1 

Regulations  for  SEC.  32.  That  the  commanding  general  may  transfer 
all  public  property,  received  by  him  for  the  use  of  the 
National  Guard  under  the  provision  of  this  act,  to  the  sev- 
eral departmental  officers  of  the  general  staff,  arid  may 
make  and  prescribe  regulations  for  its  issue  by  them,  and 
for  its  care  and  preservation  by  the  officers  or  soldiers  to 
whom  issued. 

Returns,  etc.  SEC.  33.  That  every  officer  receiving  public  property  for 
military  use  shall  be  accountable  for  the  articles  so  received 
by  him,  and  shall  make  returns  of  such  property  at  such 
times,  in  such  manner,  and  on  such  forms  as  may  be  pre- 
scribed. He  shall  be  liable  to  trial  by  court-martial  for 
neglect  of  duty,  and  also  make  good  to  the  United  States 
the  value  of  all  such  property  defaced,  injured,  destroyed  or 
lost,  by  any  neglect  or  default  on  his  part,  to  be  recovered 
in  an  action  of  tort,  or  by  any  other  action  at  law,  to  be  insti- 
tuted by  the  judge-advocate-general  of  the  militia  at  the 
order  of  the  commanding  general.  All  money  received  on 
account  of  loss  or  damages  shall  be  paid  in  the  Treasury 
of  the  United  States,  and  shall  be  accounted  for  by  the  com- 
manding general  in  his  returns  to  the  Secretary  of  War. 

Punishment     gEC  34   Th&t  any  officer  or  soldier  who  shall  sell,  dis- 

I  or  selling,  6tC., 

public  property,  pose  of  pawn  or  pledge,  willfully  destroy  or  injure,  or  re- 
tain after  proper  demand  made,  any  public  property  issued 
under  the  provisions  of  this  act,  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  be  punished  by  imprisonment  for 
not  exceeding  two  months,  or  by  a  fine  not  exceeding  one 
hundred  dollars,  or  by  both ;  and  it  is  hereby  made  the  duty 
of  the  judge  of  the  police  court  of  the  District  of  Columbia, 
upon  information  filed  or  complaint,  made  under  oath,  to 
issue  process  for  the  arrest  of  the  offender,  and  to  cause 
him  to  be  brought  before  the  police  court  to  be  dealt  with 
according  to  the  provisions  of  this  section. 

Liability  o  f  SEC.  35.  That  until  an  officer,  or  his  legal  representative 
shall  have  received  notice  that  the  property  accounts  of 
such  officer  have  been  examined  and  found  correct,  the 
liability  of  such  officer,  or  of  his  estate,  for  public  property 
for  which  he  is  or  may  have  been  responsible  shall  be  in  no 
way  affected  by  resignation,discharge,  change  in  official  posi- 
tion, or  death.  Upon  the  death  or  desertion  of  an  officer 

1  Held  that  the  "military  stores  "  required  by  section  31  of  the  act  of  March  1. 
1889,  to  be  furnished  for  the  militia  of  the  District  of  Columbia,  did  not  in  lude 
copies  of  the  Infantry  Drill  Regulations.  (Dig.  Opin.  J.  A.  Gen.,  521,  par.  14.) 

Held  that  the  clothing  and  camp  and  garrison  equipage  issued  to  the  District  of 
Columbia  militia,  under  section  31  of  the  act  of  Marci^  1.  1889,  was  properly  to  be 
inspected  by  militia,  not  by  army  officers ;  and  that  the  condemned  portion,  if  any, 
was  to  be  reported  by  the  commanding  general  of  the  militia  to  the  Secretary  of 
War,  to  be  disposed  of  as  he  should  direct.  (Ibid.,  par.  15.)  See  also  act  of  July  23, 
1888,  paragraph  1287,  post. 


THE   MILITARY   LAWS  OF   *THE   UNITED   STATES.  47 1 

responsible  for  public  property  his  immediate  commander 
shall  at  once  cause  the  property  for  which  such  officer  was 
responsible  to  be  collected,  and  a  correct  inventory  made 
by  actual  count  and  examination ;  which  inventory  shall  be 
forwarded  to  the  commanding  general,  in  orderthat  any  defi- 
ciency may  be  made  good  from  the  estate  of  the  deceased 
or  deserting  officer;  compensation  for  such  deficiency  may 
be  recovered  in  the  manner  provided  in  section  thirty-four. 

SEC.  36.  That  property  issued  or  provided  under  the  pro-  rYne8°trviceable 
visions  of  this  act  which  becomes  unfit  for  use,  and  is  con- 
demned as  unserviceable  shall  be  reported  by  the  com- 
manding general  to  the  Secretary  of  War,  and  shall  be 
disposed  of  as  may  be  directed  by  him. 

SEC.  37.  That  any  organization  of  the  active  militia  may,  Distinctiveuni- 
with  the  approval  of  the  commanding  general,  and  at  its 
own  expense,  adopt  any  other  uniform  than  that  issued  to 
it;  bat  such  uniform  shall  not  be  worn  when  such  organiza- 
tion is  on  duty  under  the  orders  of  the  commanding  general 
except  by  his  permission. 

SEC.  38.  That  organizations  of  the  National  Guard  shall    Right  to  own 

personal  prop- 

have  the  right  to  own  and  keep  personal  property,  which  erty. 
shall  belong  to  and  be  under  the  control  of  the  active  mem- 
bers thereof;  and  the  commanding  officer  of  any  organiza- 
tion may  recover  for  its  use  any  debts  or  effects  belonging 
to  it,  or  damages  for  injury  to  such  property;  action  for  Actions  for  in- 
such  recovery  to  be  brought,  in  the  name  of  such  com- 
manding officer,  before  any  justice  of  the  peace,  with  the 
right  of  appeal  to  the  supreme  court  of  the  District -of  Co- 
lumbia, or  before  the  supreme  court  of  the  District  of  Colum- 
bia; and  no  suit  or  complaint  pending  in  his  name  shall  be 
abated  by  his  ceasing  to  be  commanding  officer  of  the 
organization;  but,  upon  the  motion  of  the  commander  suc- 
ceeding him,  such  commander  shall  be  admitted  to  prose- 
cute the  suit  or  complaint  in  like  manner  and  with  like  effect 
as  if  it  had  been  originally  commenced  by  him. 

SEC.  39.  That  the  quartermaster-general  of  the  militia  Armories  to  be 
shall  provide,  by  rental  or  otherwise,  such  armories  for  the  pr 
National  Guard  as  may  be  allowed  and  directed  by  the 
commanding  general.  He  shall  also  provide  each  organiza- 
tion with  such  lockers,  closets,  gunracks,  and  cases  or  desks, 
as  may  be  necessary  for  the  care,  preservation,  and  safe- 
keeping of  the  arms,  equipments,  uniforms,  records,  and 
other  military  property  in  their  possession.  He  shall  also 
provide  suitable  rooms  for  the  offices  of  the  commanding 
general  and  staff,  for  the  keeping  of  books,  the  transaction 
of  business,  and  the  instruction  of  officers,  and  also  suitable 
places  for  the  storage  and  safe-keeping  of  public  property. 


472  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 


Duties.  MILITARY  DUTIES. 

Drills,  etc.,  to     SEC.  40.  That  any  drill,  parade,  encampment,  or  duty 

be  a  military 

duty.  that  is  required,  ordered,  or  authorized  to  be  performed 

under  the  provisions  of  this  act,  shall  be  deemed  to  be 
a  military  duty,  and  while  on  such  duty  every  officer  and 
enlisted  man  of  the  National  Guard  shall  be  subject  to  the 
lawful  orders  of  his  superior  officers,  and  for  any  military 
offense  may  be  put  and  kept  under  arrest  or  under  guard 
for  a  time  not  extending  beyond  the  term  of  service  for 
which  he  is  then  ordered. 

SEC.  41.  That  the  commanding  general  shall  prescribe 
such  stated  drills  and  parades  as  he  may  deem  necessary 
for  the  instruction  of  the  National  Guard,  and  may  order 
out  any  portion  of  the  National  Guard  for  such  drills, 
inspections,  parades,  escort,  or  other  duties,  as  he  may 
deem  proper.  The  commanding  officer  of  any  regiment, 
battalion,  or  company  may  also  assemble  his  command,  or 
any  part  thereof,  in  the  evening  for  drill,  instruction,  or 
other  business,  as  he  may  deem  expedient;  but  no  parade 
shall  be  performed  by  any  regiment,  battalion,  company, 
or  part  thereof,  without  the  permission  of  the  commanding 
general. 

SEC.  42.  That  an  annual  inspection  and  muster  of  each 
organization  of  the  National  Guard,  and  an  inspection  of 
their  armories  and  of  public  property  in  their  possession, 
shall  be  made  at  such  times  and  places  as  the  commanding 
general  may  order  and  direct. 

Camp  duty.  SEC.  43.  That  the  National  Guard  shall  perform  not  less 
than  six  consecutive  days  of  camp  duty  in  each  year,  at 
such  time  as  maybe  ordered  by  the  commanding  general; 
and  the  quartermaster-  general  of  the  militia,  subject  to  the 
approval  of  the  commanding  general,  shall  provide,  by 
rental  or  otherwise,  a  suitable  camp  ground  for  the  annual 
encampment  of  the  militia,  make  the  necessary  provisions 
thereon  for  the  encampment,  and  provide  necessary  trans- 
portation to  and  from  the  same  for  baggage  and  supplies. 
use  of  wash-  SEC.  44.  The  National  Guard  shall  have  the  use  of  the 
C8>  drill  grounds  and  rifle-range  at  the  Washington  Barracks, 
subject  to  the  approval  of  the  Secretary  of  War,  and  the 
commanding  general  of  the  militia  shall  provide  such  addi- 
tional targets  and  accessories  as  may  be  necessary  for  the 
use  of  the  militia. 


riotsPItce9sion  °f  ^EC*  ^*  That  when  there  is  in  the  District  of  Columbia 
a  tumult,  riot,  mob,  or  a  body  of  men  acting  together  by 
force  with  attempt  to  commit  a  felony  or  to  offer  violence 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  473 

to  persons  or  property,  or  by  force  and  violence  to  break 
and  resist  the  laws,  or  when  such  tumult,  riot,  or  mob  is 
threatened,  it  shall  be  lawful  for  the  commissioners  of  the 
District  of  Columbia,  or  for  the  United  States  marshal  for 
the  District  of  Columbia,  to  call  on  the  commander-in-chief 
to  aid  them  in  suppressing  such  violence  and  enforcing  the 
laws;  the  commander-in  chief  shall  thereupon  order  out  so 
much  and  such  portion  of  the  militia  as  he  may  deem  nec- 
essary to  suppress  the  same,  and  no  member  thereof  who 
shall  be  thus  ordered  out  by  proper  authority  for  any  such 
duty  shall  be  liable  to  civil  or  criminal  prosecution  for  any 
act  done  in  the  discharge  of  his  military  duty. 

SEC.  46.  That  no  officer  or  soldier  of  the  National  Guard,  du^CU8es  from 
when  ordered  on  duty  to  aid  the  civil  authorities,  or  when 
ordered  into  the  service  of  the  United  States  in  obedience 
to  the  call  or  order  of  the  President,  shall  be  excused  from 
such  duty  except  upon  the  certificate  of  the  surgeon  of  his 
command  of  physical  disability,  such  certificate  to  be  pre- 
sented to  the  commanding  general  in  case  of  an  officer,  or 
to  his  company  commander  in  case  of  a  soldier.  If  such 
officer  or  soldier  fail  to  furnish  such  excuse  he  shall  be 
tried  and  punished  by  a  court-martial.  For  absence  from 
any  other  military  duty  required  or  ordered  under  the  pro- 
visions of  this  act  the  penalty  shall  be  such  as  may  be  pre- 
scribed by  the  commanding  general,  or  the  by-laws  of  the 
organization  to  which  the  officer  or  soldier  belongs. 

SEC.  47.  That  the  United  States  forces  or  troops,  or  any ,  ?»»*?,; etc.,  to 

J  have     right1   of 

portion  of  the  militia,  parading,  or  performing  any  duty  way. 

according  to  law,  shall  have  the  right  of  way  in  any  street 

or  highway  through  which  they  may  pass :  Provided,  That 

the  carriage  of  the  United  States  mails,  the  legitimate   Mail,  fire  ae. 

functions  of  the  police,  and  the  progress  and  operations  of pa 

fire-engines  and  fire  departments  shall  not  be  interfered 

with  thereby. 

SEC.  48.  That  every  commanding  officer,  when  on  duty,  raJefeanf3r  /£'. 
may  ascertain  and  fix  necessary  bounds  and  limits  to  his  camPments> 
parade  or  encampment.  Whoever  intrudes  within  the 
limits  of  the  parade  or  encampment  after  being  forbidden, 
or  whoever  shall  interrupt,  molest,  or  obstruct  any  officer 
or  soldier  while  on  duty,  may  be  put  and  kept  under  guard 
until  the  parade,  encampment,  or  duty  be  concluded :  and 
the  commanding  officer  may  turn  over  such  person  to  any 
police  officer,  and  said  police  officer  is  required  to  detain 
him  in  custody  for  examination  or  trial  before  the  police 
court,  and  the  judge  thereof  may  punish  such  offense  by  a 
fine  not  exceeding  twenty-five  dollars. 


474  THE  MILITARY  LAWS   OF   THE   UNITED   STATES. 

gEC>  49.  That  all  officers  and  employees  of  the  United 
States  and  of  the  District  of  Columbia  who  are  members 
of  the  National  Guard  shall  be  entitled  to  leave  of  absence 
from  their  respective  duties,  without  loss  of  pay  or  time,  on 
all  days  of  any  parade  or  encampment  ordered  or  author- 
ized under  the  provisions  of  this  act. 

Hilitarycourts.  MILITARY  COURTS. 

courts  of  in-     SEC.  50.  Courts  of  inquiry,  to  consist  of  not  more  than 

quiry. 

three  officers,  may  be  ordered  by  the  commanding  general, 
for  the  purpose  of  investigating  the  conduct  of  any  officer, 
either  at  his  own  request  or  on  a  complaint  or  charge  of 
conduct  unbecoming  an  officer.  Such  court  of  inquiry  shall 
report  the  evidence  adduced,  a  statement  of  facts,  and  an 
opinion  thereon,  when  required,  to  the  commanding  general, 
who  may,  in  his  discretion,  thereupon  order  a  court-martial 
for  the  trial  of  the  officer  whose  conduct  has  been  inquired 
into. 

courts-martial.  gEC<  5^  That  general  courts-  martial  for  the  trial  of  com- 
missioned officers  or  enlisted  men  shall  be  ordered  by  the 
commanding  general  at  such  times  as  the  interests  of  the 
service  may  require,  and  shall  consist  of  not  less  than  five 
nor  more  than  thirteen  officers,  and  a  judge-advocate,  none 
of  whom  shall  be  of  less  rank  than  the  accused,  when  it 
can  be  avoided. 


edTml^80fenli8t"  SEC-  52-  That  for  the  trial  of  enlisted  men  for  a11  minor 
offenses  the  commanding  officer  of  each  battalion  and 
unattached  company  shall,  at  such  times  as  may  be  neces- 
sary, appoint  courts-martial.  Such  battalion  and  company 
courts-  martial  shall  consist,  for  a  battalion,  of  one  officer, 
whose  rank  is  not  below  that  of  captain;  and  for  a  com- 
pany, of  a  lieutenant.  Such  courts  shall  have  power,  sub- 
ject to  the  approval  of  the  officer  ordering  the  court,  to 
sentence  to  be  reprimanded  by  said  officer  in  battalion  or 
company  orders;  or,  in  case  of  a  company  non-commis- 
sioned officers,  to  be  reduced  to  the  ranks,  or  to  pay  such 
fines  as  may  be  imposed  and  allowed  by  the  regulations  or 
by-laws  of  the  organization  to  which  the  accused  belongs; 
and  such  court  may,  with  the  approval  of  the  commanding 
general,  sentence  to  be  reprimanded  in  general  orders  or 
to  be  dishonorably  discharged. 

tr£isceedings  in  SEC.  53.  That  the  president  of  a  general  court-martial 
or  court  of  inquiry,  and  the  officer  constituting  a  battalion 
or  company  court-martial,  shall  have  power  to  administer 
the  usual  oath  to  witnesses,  and  may  issue  summonses  for 
all  witnesses  whose  attendance  at  such  court  may,  in  his 
opinion,  be  necessary,  and  any  officer  or  soldier  failing  to 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  475 

serve  such  summons,  and  any  witness  failing  to  appear 
and  testify  when  so  summoned,  shall  be  liable  to  trial  by 
court-martial. 

SEC.  54.  That  in  all  courts-martial  and  courts  of  inquiry  ATo  conform  to 
the  arraignment  of  the  accused,  the  proceedings,  trial,  and 
record  shall  in  all  respects  conform  as  nearly  as  practi- 
cable to  the  regulations  for  the  same  in  the  Army  of  the 
United  States. 

EXPENSES  AND   ALLOWANCES. 

SEC.  55.  That  there  shall  be  allowed  for  the  general  pe^eral  6X- 
expenses  of  the  militia  such  sums  as  may  be  necessary  for 
the  rental  and  furnishing  of  offices  for  headquarters,  sta- 
tionery, postage,  printing  and  issuing  orders,  advertising 
orders,  providing  necessary  blanks  for  the  use  of  the  mili- 
tia, the  cost  of  storing,  caring  for,  and  issuing  all  public 
property,  and  such  other  contingent  expenses,  not  herein 
specially  provided  for,  as  may  be  estimated  and  appro- 
priated for  ;  the  accounts  for  which  shall  be  certified  to  by 
the  officer  receiving  the  service  or  property  charged  for? 
approved  by  the  commanding  general,  and  paid  in  the 
manner  provided  in  section  sixty. 

SEC.  56.  That  during  the  annual  encampment,  and  on  Payment  t,o 
every  duty  or  parade  ordered  by  the  commanding  general, 
there  shall  be  allowed  and  paid  for  each  day  of  service : 
To  each  member  of  the  regularly  enlisted  band,  four  dol- 
lars; to  each  member  of  the  regularly  enlisted  corps  of 
field  music,  two  dollars;  to  the  chief  musician,  eight  dol- 
lars, and  to  the  principal  musician,  six  dollars.  In  event 
there  is  no  enlisted  band  or  field  music,  or  not  a  sufficient 
number  of  either,  the  commanding  general  may  authorize 
the  employment  of  such  as  he  may  deem  necessary  for  the 
occasion.  The  payments  for  bands  of  music  and  drum  corps 
shall  be  made  in  the  manner  provided  in  section  sixty. 

SEC.  57.  That  during  the  annual  encampment,  or  when    subsistence 

-i          -i  -it  •  i    /i          •     .1  i        -».-r    ,  -.  while  on  duty. 

ordered  on  duty  to  aid  the  civil  authorities,  the  National 
Guard  shall  be  furnished  with  subsistence  stores,  of  the 
kind,  quality,  and  amount  allowed  and  prescribed  by  the 
Army.  Such  stores  shall  be  issued  from  the  stores  and 
supplies  appropriated  for  the  use  of  the  Army,  upon  the 
approval  and  by  the  direction  of  the  Secretary  of  War,  to 
the  commanding  general  upon  his  requisitions  for  the  same. 

SEC.  58.  That  the  commanding  general  shall  annually  Estimates, 
transmit  to  the  Commissioners  of  the  District  of  Columbia 
an  estimate  of  the  amount  of  money  required  for  the  next 
ensuing  fiscal  year  to  pay  the  expenses  authorized  by  this 
act,  and  the  said  Commissioners  shall  include  the  same  in 
their  annual  estimates  of  appropriations  for  the  District; 
and  all  money  appropriated  to  pay  the  expenses  authorized 


476  THE    MILITARY    LAWS   OF   THE   UNITED    STATES. 

Disbursements,  by  this  act  shall  be  disbursed  by  the  Commissioners  of  the 
District  of  Columbia,  upon  vouchers  duly  certified  and 
approved  by  the  commanding  general,  and  accounted  for 
by  them  in  the  same  manner  as  all  other  moneys  appro- 
priated for  the  expenses  of  the  District. 

GENERAL   PROVISIONS. 

Regulations.  SEC.  59.  That  companies,  battalions,  or  regiments  may 
adopt  constitutional  articles  of  agreement  or  by-laws,  sub- 
ject to  the  approval  of  the  Commander-in-chief,  for  the 
government  of  matters  relating  to  the  civic  affairs  of  their 
respective  organizations,  the  regulation  of  fines  for  non- 
performance  of  duty,  and  the  determination  of  causes  upon 
which  excuses  from  fines  may  be  based :  Provided,  however, 
^na^  such  articles  or  rules  shall  not  be  repugnant  to  law 
or  the  regulations  for  the  government  of  the  militia:  And 
provided  further,  That  the  articles  or  rules  adopted  by  any 
Company  and  company  or  battalion  shall  not  be  repugnant  to  the  articles 
battalion  rules.  or  ^^  adopted  for  tne  general  government  of  the  regi- 
ment or  battalion  to  which  it  belongs.  Certified  copies  of 
such  articles  or  rules,  with  like  copies  of  all  alterations,  as 
finally  approved  by  the  commanding  general,  shall  be 
deposited  in  the  office  of  the  adjutant-general. 

Duties  of  offi-  SEC.  60.  The  departmental  and  military  duties  of  the 
officers  provided  for  in  this  act  shall  be  correlative  with 
those  discharged  by  similarly  designated  officers  in  the 
Army  of  the  United  States. 

Discipline.  SEC.  61.  That  the  system  of  discipline  and  field-exercise 
ordered  to  be  observed  by  the  Army  of  the  United  States, 
or  such  other  system  as  may  hereafter  be  directed  for  the 
militia  by-laws  of  the  United  States,  shall  be  observed  by 
the  National  Guard. 

general *? mail  SEO'  62<  Tnat  tne  commailding  general,  subject  to  the 
regulations.  approval  of  the  commander-in-chief,  is  authorized  to  make 
and  publish  regulations  for  the  government  of  the  militia 
in  all  matters  not  specifically  provided  for  by  law,  con- 
forming the  same  to  the  practice  and  regulations  of  the 
Army  so  far  as  they  may  be  applicable. 

vTp'215         SEC*  63'  That  the  act  Umore  effectually  to  provide  for 
37E-  sjg-  c.,  *ch.  the  organization  of  the  militia  of  the  District  of  Columbia," 
approved  March  third,  eighteen   hundred  and  three,  is 
hereby  repealed.     Act  of  March  1, 1889  (25  Stat.  L.,  772). 
1287t  That  the  Secretary  of  War  be,  and  he  is  hereby, 


8tjS?'  23  1888  au^norize(l  to  issue  from  the  stores  of  the  Army  such  arms, 
v.  25,  p.  627.        ordnance  stores,  quartermasters'  stores,  and  camp  equi- 
page, to  the  militia  of  the  District  of  Columbia  as  he  may 
deem  necessary  for  their  proper  equipment  and  instruction. 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  477 

The  property  so  issued  shall  remain  and  continue  to  be 
the  property  of  the  United  States,  and  shall  be  annually 
accounted  for  in  such  manner  as  the  Secretary  of  War  may 
require.  Act  of  July  23,  1888  (25  Stat.  L.,  627}. 

1288.  That  hereafter  all  leases  and  contracts  involving  ex-    Leases,  etc.,  to 
penditures  on  account  of  the  militia  shall  be  made  by  the  missioned  of  the 
Commissioners  of  the  District  of  Columbia  ;  and  the  appro-  Columbia*.  n< 
priations  for  the  militia  shall  be  disbursed  only  upon  vouch-  v.  29?p.  412.      ' 
ers  duly  authorized  by  the  Commissioners,  for  which  they 

shall  be  held  strictly  accountable.  And  no  contract  shall  be 
made  or  liability  incurred  under  appropriations  for  the 
militia  of  the  District  of  Columbia,  beyond  the  sums  herein 
appropriated.  Act  of  June  11,  1896  (29  Stat.  L.,  412). 

TERRITORIAL  MILITIA. 

1289.  The  executive  power  of  each  Territory  shall  be  mi^faTerritorial 
vested  in  a  governor,  who  shall  hold  his  office  for  four    July  19,  1876,  c. 
years,  and  until  his  successor  is  appointed  and  qualified,    &  Mex.,  sept. 
unless  sooner  removed  by  the  President.     He  shall  reside  v.  o,  p.  44?  ;  Utah, 

j_i        m         -A  «  1-11-  •     i     -i  i       i      11    i      Sept.  9,  1850,  c.  51, 

m  the  Territory  for  which  he  is  appointed,  and  shall  be  s.2,  v.9,  p.453-1 
commander-iii-chief  of  the  militia  thereof.  He  may  grant  ISM-,  c'.  90,8,2,*'. 
pardons  and  reprieves,  and  remit  fines  and  forfeitures,  for  Feb^'2?;i86iJ°o! 
offenses  against  the  laws  of  the  Territory  for  which  he  isifef'Dak.',  Ma?.' 
appointed,  and  respites  for  offenses  against  the  laws  of  the|;  ^61'2)CP86239J 
United  States,  till  the  decision  of  the  President  can  be^jg^  .^fej;2t^ 
made  known  thereon.  He  shall  commission  all  officers  Mar' 
who  are  appointed  under  the  laws  of  such  Territory,  and  JJJ^  8M 
shall  take  care  that  the  laws  thereof  be  faithfully  executed.  ™>™  64>8c6-.^8-02' 

July  25,  1868,  c.  235,  s.  2,  v.  15,  p.  178.    American   ins'.' 
Co.  v.  356  Bales  of  Cotton,  1  Pet.,  511.     Sec.  1841,  R.  S. 

Justices  of  the  peace  and  ail  general  officers  of  the  militia    Election  of  .•iu8- 

,    ,,,        .         .  IT,-,          i  -,  i  tices  of  the  peace 

in  the  several  Territories  shall  be  elected  by  the  people  and  militia  offi. 
in  such  manner  as  the  respective  legislatures  may  provide  June  is,  1844,  c. 

69,  s.  2,  v.  5,  p.  671. 
bylaw.  Sec.  1856,  B.S. 

All  township,  district,  and  county  officers,  except  jus-    mh^  officers^ 
tices  of  the  peace  and  general  officers  of  the  militia,  shall  9,  isso,  c.  49,  s.8, 

v.9,  p.  449;  Utah, 

be  appointed  or  elected  in  such  manner  as  may  be  pro-  sept.  9,  isso,  c.  51, 
vided-by  the  governor  and  legislative  assembly  of  each  wash7.',  kPar.  2,' 
Territory;  and  all  other  officers  not  herein  otherwise  pro-  10,  p.c'i75;  coio.,' 
vided  for,  the  governor  shall  nominate,  and  by  and  withes.  7?V18i2,  £ 


the  advice  and  consent  of  the  legislative  council  of 
Territory,  shall  appoint;  but,  in  the  first  instance,  where  a 
new  Territory  is  hereafter  created  by  Congress,  the  gov- 
ernor  alone  may  appoint  all  the  officers  referred  to  in  this  ^r>8  ^ 
and  the  preceding  section  and  assign  them  to  their  respec-  g1  igjj^&f 
tive  townships,  districts,  and  counties;  and  the  officers  8O  J;  J3>  P^}^®'* 
appointed  shall  hold  their  offices  until  the  end  of  the  first  235,3.  7,'  v.  17,  p. 
session  of  the  legislative  assembly.  sec.i857,R.s. 


478      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

1290t  Tnat  tue  Secretarv  of  War  is  hereby  authorized  to 


and  border  cause  to  be  issued  to  the  Territories,  and  the  States  border- 

States. 

joint  Kes.  NO.  ing  thereon,  such  arms  as  he  may  deem  necessary  for  their 
v.  19,^214';  Joint  protection,  not  to  exceed  one  thousand  to  said  States  and 
3,  1877,  V.'IQ,  p!  Territories  each,  and  ammunition  for  the  same,  not  to 
v!2ojpa6i!6>  1878>  exceed  fifty  ball  cartridges  for  each  arm:  Provided,  That 
such  issues  shall  be  only  from  arms  owned  by  the  Govern- 
ment which  have  been  superseded  and  no  longer  issued  to 
the  Army :  Provided  however,  that  said  arms  shall  be  issued 
only  in  the  following  manner,  and  upon  the  following  con- 
ditions, namely,  upon  the  requisition  of  the  governors  of 
said  States  or  Territories  showing  the  absolute  necessity 
of  arms  for  the  protection  of  the  citizens  and  their  property 
against  Indian  raids  into  said  States  or  Territories  also 
that  militia  companies  are  regularly  organized  and  under 
control  of  the  governors  of  said  States  or  Territories  to 
whom  said  arms  are  to  be  issued,  and  that  said  governor  or 
governors  shall  give  a  good  and  sufficient  bond  for  the 
return  of  said  arms  or  payment  for  the  same  at  such  time 
as  the  Secretary  of  War  may  designate:  Provided,  That 
the  quota  to  the  States  now  authorized  by  law  shall  not 
hereby  be  diminished.1  Joint  Res.  No.  13,  July  3,  1876  (19 
Stat.  L.,  214). 
Additional  1291.  That  the  Secretary  of  War  is  hereby  authorized 

ar  ra  s  ,   etc.,  for 

Territories.  to  cause  to  be  issued  to  each  of  the  Territories  of  the 
26,  ?iune  7,  1878,'  United  States  (in  addition  to  arms  and  ammunition  the 
issue  of  which  has  been  heretofore  provided  for),  such  arms 
not  to  exceed  one  thousand  in  number  as  he  may  deem 
necessary,  and  ammunition  for  the  same  not  to  exceed  fifty 
ball  cartridges  for  each  arm:  Provided,  That  such  issue 
shall  be  only  from  arms  owned  by  the  Government  of  the 
United  States  which  have  been  superseded  and  no  longer 
issued  to  the  Army:  And  provided  further,  That  said  arms 
shall  be  issued  only  in  the  following  manner,  and  upon  the 
following  conditions,  namely,  upon  the  requisition  of  the 
governors  of  said  Territories  showing  the  absolute  necessity 
for  arms  for  the  protection  of  citizens  and  their  property 
against  hostile  Indians  within  or  of  Indian  raids  into  such 
Territories :  And  provided  further,  That  the  said  governor 
or  governors  of  said  Territories  to  whom  the  said  arms  may 
be  issued  shall  give  good  and  sufficient  bond  or  bonds  for 
the  return  of  said  arms,  or  payment  therefor,  at  such  time 
as  the  Secretary  of  War  may  designate,  as  now  provided 
for  by  law.  Joint  Res.  No.  26,  June  7,  1878  (20  Stat.  L., 
252). 

J  Superseded  as  to  the  Territories  by  joint  resolution  No.  26,  June  7,  1878  (20  Stat. 
L.,  252),  paragraph  1291,  post.    See  alao  paragraphs  1276  and  1277,  ante. 


CHAPTER 


MILITAEY  TRIBUNALS— COURTS-MARTIAL— 
OOUETS  OF  INQUIRY. 


Par. 

1292.  Arrest  of  officers. 

1293.  Confinement     of 


enlisted 


men. 

1294 .  Limit  of  time  in  case  of  ar- 

rest or  confinement. 

1295.  The  same. 

1296.  Written    statement    of    of- 

fense, refusal  of  provost- 
marshal  to  receive;  pen- 
alty. 

1297.  Report  of  prisoners. 

1298.  Release  of  prisoner;  permit- 

ting escape. 

1299.  Who  may  convene  general 

courts-martial  in  time  of 
peace. 

1300.  Who  may  convene  in  time 

of  war. 

1301.  Composition. 

1302.  When  requisite  number  is 

not  present  at  a  post. 

1303.  Regular  officers  not  to  sit  on 

court  to  try  officers  or  sol- 
diers of  other  forces. 

1304.  Officers  of  Marines  and  of 

Regular  Army  may  be  as- 
sociated on  courts. 

1305.  Officers   triable  by  general 

courts-martial. 

1306.  Retainers  to  camp. 

1307.  Militia  while  in  service  sub- 

ject to  Articles  of  War. 

1308.  Contempts  of  court. 

1309.  Judge-advocates. 

1310.  Judge-advocate     to     with- 

draw from  closed  session. 

1311.  Witnesses  compelled  to  at- 

tend. 

1312.  Reporter. 

1313.  Record,  disposition  of. 

1314.  Approval  of  sentence  by  of- 

ficer ordering  court. 


Par. 
1315. 


1316. 
1317. 


Confirmation  of  death  sen- 
tence; offenses  in  time  of 
war. 

Confirmation  of  sentences  of 
dismissal  in  time  of  peace. 

The  same;  confirmation  by 
division  or  brigade  com- 
manders. 

1318.  The     same;     sentences    re- 

specting general  officers. 

1319.  The  same;  confirmation  by 

officer  ordering  court. 

1320.  The    same;     suspension    of 

sentences  pending  Execu- 
tive action. 

1321.  Pardon    and    mitigation  of 

punishments. 

1322.  Party   entitled    to   copy  of 

record. 

1323.  Regimental  courts-martial. 

1324.  Redress  of  wrongs. 

1325.  Field  officers'  courts. 

1326.  Confirmation  of  sentences. 

1327.  Garrison  courts-martial. 

1328.  Jurisdiction  of  minor  courts. 

1329.  The  summary  court. 

1330.  Power  to  remit  or  mitigate 

sentences. 

1331.  Trials  by  commanding  of- 

ficer. 

1332.  Enlisted  man  may  request 

court-martial. 

1333.  Report  of  cases  tried. 

1334.  Limit  of  punishment. 

1335.  No  person  to  be  twice  tried 

for  same  offense. 

1336.  Limitation  on  time  of  prose- 

cution. 

1337.  Limitation  on  prosecutions 

for   desertion   in  time   of 
peace. 

1338.  Courts  of  inquiry. 


479 


480 


THE   MILITARY  LAWS   OF   THE   UNITED   STATES. 


Par.       %  Par. 

1339.  Composition.  1350. 

1340.  Oaths  of  members  and  re- 

corder. 1351. 

1341.  Power  to  summon  and  exam- 

ine witnesses.  1352. 

1342.  Opinion;  when  given. 

1343.  Authentication  of  proceed-     1353. 

ings. 

1344.  Proceedings;  when  used  as  i 

evidence.  1354. 

1345.  Evidence  to  be  given  under 

oath. 

1346.  Accused  person  may  testify. 

1347.  Copies  of  Department  rec-    1355. 

ords  and  papers. 

1348.  Copies  of  records  in  office  of 

Solicitor  of  Treasury.  1356. 

1349.  Transcripts  from  the  books 

of  the  Treasury  in  suits 
against  delinquents. 


The  same;  in  indictmentsfor 
embezzlements,  etc. 

Copies  of  returns  in  Re- 
turns Office. 

Extracts  from  Journals  of 
Congress. 

Copies  of  records,  etc.,  in 
offices  of  United  States 
consuls. 

Authentication  of  legisla- 
tive acts,  and  proof  of 
judicial  proceedings  in 
States. 

Proofs  of  records,  etc.,  kept 
in  offices  not  pertaining 
to  courts. 

Little  &  Brown's  edition  of 
Statutes  to  be  evidence. 


ARREST  AND   CONFINEMENT. 

Arrest  of  offi-     1292.  Officers  charged  with  crime  shall  be  arrested  and 

65  Art.  war.    confined  in  their  barracks,  quarters,  or  tents,  and  deprived 

of  their  swords  by  the  commanding  officer.1   And  any  officer 


'An  officer  may  be  pnt  in  arrest  by  a  verbal  or  \vritten  order  or  communication 
from  an  authorized  superior,  advising  him  that  he  is  placed  in  arrest  or  will  con- 
sider himself  in  arrest  or  in  terms  to  that  eft'ect.  The  reason  for  the  arrest  need  not 
be  specified.  At  the  same  time  he  is  usually  required  to  surrender  his  sword,  though 
this  formality  may  be  dispensed  with.  But  an  arrest,  though  an  almost  invariable, 
is  not  an  essential  preliminary  to  a  military  trial.  To  give  the  court  jurisdiction  it 
is  not  necessary  that  the  accused  should'  have  been  arrested ;  it  is  sufficient  if  he 
voluntarily,  or  in  obedience  to  an  order  directing  him  to  do  so,  appears  and  submits 
himself  to'trial.  So  neither  the  fact  that  an  accused  has  not  been  formally  arrested 
or  arrested  at  all,  nor  the  fact  that  having  been  once  arrested  and  released  from 
arrest  he  has  not  been  rearrested  before  trial,  can  be  pleaded  in  bar  of  trial  or  con- 
stitute any  ground  of  exception  to  the  validity  of  the  proceedings  or  sentence.  An 
officer  is  in  no  case  entitled  to  demand  to  be  'arrested.  (Dig.  Opin.  J.  A.  Gen.,  169, 
par.  1.)  see,  also,  MANUAL  FOB  COURTS-MARTIAL,  pp.  4-8. 

The  term  "crime"  is  here  employed  in  a  general  sense,  referring  to  offenses  of  a 
military  character,  as  well  as  to  those  of  a  civil  character  which  are  cognizable  by 
court-martial.  An  offense  in  violation  of  this  article  is  only  committed  when  an 
officer,  confined  in  "  close  arrest "  to  his  quarters,  leaves  the  same  without  authority. 
A  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  by  confinement 
to  quarters,  would  be  an  offense,  not  within  this  article,  but  under  article  62.  (Ibid., 
p.  78,  par.  1.) 

Except  in  the  class  of  cases  indicated  in  article  24,  only  "commanding  officers  "  can 
place  commissioned  officers  in  arrest.  (See  par.  897,  Army  Regulations,  1895.)  The 
commanding  officer  thus  authorized  is  the  commander  of  the  regiment,  company, 
detachment,  post,  department,  etc.,  in  which  the  officer  is  serving.  Where  a  com- 
pany is  included  in  a  post  command,  the  commander  of  the  post  rather  than  the 
company  commander  is  the  proper  officer  to  make  the  arrest  of  a  subaltern  of 
the  company.  In  the  majority  of  cases,  however,  arrests  are  originally  ordered 
by  the  authority  by  whom  the  court  has  been  or  is  to  be  convened.  (Ibid.,  170,  par.  2.) 

It  is  clearly  to  be  inferred  from  paragraphs  897-898  of  the  Army  Regulations,  1895, 
that  unless  other  limits  ar«  specially  assigned  him,  an  officer  in  arrest  must  confine 
himself  to  his  quarters.  It  is  generally  understood,  indeed,  that  he  can  go  to  the 
mess  house  or  other  place  of  necessary  resort.  It  is  not  unusual,  however,  for  the 
commander,  in  the  order  of  arrest,  to  state  certain  limits  within  which  the  officer  is  to 
be  restricted,  and,  except  in  aggravated  cases,  these  are  ordinarily  the  limits  of  the 
post  where  he  is  stationed  or  held.  An  officer  or  soldier,  though  retained  in  close 
arrest,  should  be  permitted  to  receive  such  visits  from  his  counsel,  witnesses,  etc., 
as  may  be  necessary  to  enable  him  to  prepare  his  defense.  (Ibid.,  par.  3.) 

The  status  of  being  in  arrest  is  inconsistent  with  the  performing  of  military  duty. 
Placing  an  arrested  officer  or  soldier  on  duty  terminates  his  arrest.  Releasing  a 
soldier  from  arrest  and  requiring  him  to  perform  military  duty,  after  his  trial  and 
while  he  is  awaiting  the  promulgation  of  his  sentence,  can  be  justified  only  by  an 
extraordinary  exigency  of  the  service.  (Ibid.,  par.  4.) 

In  all  cases  of  "constructive"  breach  of  arrest,  such  as  exercising  military  author- 
ity, wearing  sword,  etc.,  the  accused  can  not  be  charged  under  the  sixty -fifth  article, 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  481 

who  leaves  his  confinement  before  he  is  set  at  liberty  by 
his  commanding  officer  shall  be  dismissed  from  the  service. 
Sixty-fifth  Article  of  War. 

1293.  Soldiers  charged  with  crimes  shall  be  confined  until 
tried  by  court-martial,  or  released  by  proper  authority.1    ^o  Art.  War. 
Sixty-sixth  Article  of  War. 

as  the  punishment  is  mandatory  and  authorizes  the  sentence  of  dismissal  only  in  case 
of  "leaving  his  confinement."  (Ives,  Mil.  Law,  66.) 

An  officer  is  not  privileged  from  arrest  by  virtue  of  being  at  the  time  a  member  of 
a  general  court-martial.  But  an  arrest  of  an  officer  while  actually  engaged  upon 
court-martial  duty  should,  if  possible,  be  avoided.  (Dig.  J,  A.  Gen.,  170,  par.  6.) 

An  officer  under  arrest  is  not  disqualified  to  prefer  charges.    (Ibid.,  171,  par.  7.) 

The  imposition  of  an  arrest  affects  in  no  manner  the  right  of  an  officer  or  soldier 
to  receive  the  pay  and  allowances  of  his  rank.  Except  in  a  case  of  a  deserter  (see 
par.  129,  Army  [Regulations,  1895)  no  legal  inhibition  exists  to  paying  a  soldier  while 
in  arrest — either  before  trial  or  while  awaiting  sentence — his  regular  pay  and  emolu- 
ments. (Ibid.,  par.  8.) 

An  arrest  imposed  by  the  Secretary  of  the  Navy  upon  a  chief  of  bureau  in  the 
Navy  Department  in  the  following  terms,  "You  are  placed  under  arrest,  and  you 
will  confine  yourself  to  the  limits  of  the  city  of  Washington,"  held  not  to  constitute 
a  restraint  upon  liberty  sufficient  "to  justify  the  use  of  the  writ  of  habeas  corpus." 
(Wales  v.  Whitney,  114  U.  S.,  564.) 

The  principle  of  the  common  law  by  which  a  witness  is  protected  from  arrest  (a) 
should  in  general  be  applied  to  military  cases.  If  it  can  well  be  avoided  an  arrest 
should  certainly  not  be  imposed  upon  an  officer  or  soldier  while  attending  a  court- 
martial  as  a  witness.  But  such  an  arrest  would  constitute  an  irregularity  only,  and 
would  not  affect  the  validity  of  the  proceedings  of  a  trial  to  which  a  party  thus 
arrested  was  subsequently  subjected.  (Dig.  J.  A.  Gen.,  p.  171,  par.  9.) 

i  A  soldier  while  confined  in  arrest  should  not  be  fettered  or  ironed  except  where 
such  extreme  means  are  necessary  to  restrain  him  from  violence,  or  there  is  good 
reason  to  believe  that  he  will  attempt  an  escape  and  he  can  not  otherwise  be  securely 
held.  (Ibid.,  par.  10.  See  also  par.  909,  A.  ft.,  1895.) 

Under  the  regulations  (par.  907,  A.  R,.,  1895),  soldiers  in  confinement  awaiting  action 
on  the  proceedings  of  their  trials  are  assimilated  to  those  awaiting  trial,  and  both 
classes  may,  at  the  discretion  of  the  commanding  officer,  be  employed,  separately 
from  prisoners  undergoing  sentence,  upon  such  labor  as  is  habitually  required  of 
soldiers.  More  severe  or  other  labor  would  not  be  legal,  nor  would  labor  with  a 
police  party  consisting  in  whole  or  in  part  of  men  under  sentence,  however  slight 
their  sentence  might  be.(b)  A  soldier  in  arrest  in  quarters  may  be  required  to  do 
cleaning  or  police  work  about  his  quarters  which  otherwise  other  soldiers  would 
have  to  do  for  him.  (Ibid.,  par.  11.  See  also,  ibid.,  79,  par.  1 .)  See  also,  MANUAL  FOB 
COUKTS-MABTIAL,  pp.  4-8. 

CHARGES  AND  SPECIFICATIONS. 

Charges  and  specifications.— In  our  practice,  unlike  that  of  the  English  courts 
martial,  a  military  charge  properly  consists  of  two  parts — the  technical  "  charge ' 
and  the  "specification."  The  former  designates  by  its  name,  particular  or  general, 
the  alleged  offense ;  the  latter  sets  forth  the  facts  supposed  to  constitute  such  offense. 
An  accusation  against  an  officer  or  soldier  not  thus  separated  in  form  would  be 
irregular  and  exceptional  in  our  practice,  and,  till  amended,  would  not  be  accepted 
as  a  proper  basis  for  proceedings  under  the  code.  (Dig.  Opin.  J.  A.  Gen.,  224,  par.  1.) 
See  also,  MANUAL  FOE  COURTS-MARTIAL,  pp.  15-20. 

Framing  of  charges. — The  same  particularity  is  not  called  for  in  military  charges 
which  is  required  in  indictments,  (c)  The  essentials  of  a  charge  are:  (1)  That  it 
shall  be  laid  under  the  proper  article  of  war  or  other  statute ;  (2)  that  it  shall  set  forth 
(in  the  specification)  facts  sufficient  substantially  to  constitute  the  particular  offense. 
These  essentials  being  observed,  the  simpler  and  less  encumbered  with  verbiage 
awl  technical  terms  the  charge  is,  the  better,  provided  it  be  expressed  in  clear  and 
intelligible  English.  However  inartificial  a  pleading  may  be,  it  will  properly  be 
held  sufficient  as  a  legal  basis  for  a  trial  and  sentence,  provided  that  the  charge  and 

al  Greenl.  Ev.,  sec.  316 ;  Smythe  v.  Banks,  4  Dallas,  329. 

6See  G.  0. 44,  Division  of  the  Atlantic.  1889. 

cln  regard  to  the  proper  form  for  a  military  charge,  Attorney-General  Gushing 
(7  Opins.,  603)  says:  "There  is  no  one  of  exclusive  rigor  and  necessity  in  which  to 
state  military  accusations."  He  adds  further:  "Trials  by  court-martial  are  gov- 
erned by  the  nature  of  the  service,  which  demands  intelligible  precision  of  language, 
but  regards  the  substance  of  things  rather  than  their  forms.  *  *  *  The  most 
bald  statement  of  the  facts  alleged  as  constituting  the  offense,  provided  the  legal 
offense  itself  be  distinctively  and  accurately  described  in  such  terms  of  precisio'n 
as  the  rules  of  military  jurisprudence  require,  will  be  tenable  in  court-martial  pro- 
ceedings, and  will  be  adequate  ground  work  of  conviction  and  sentence."  So  it  ia 
observed  by  Attorney-General  Wirt  (1  Opins.,  286)  that  "all  that  is  necessary"  in 
a  military  charge  is  that  it  be  "sufficiently  clear  to  inform  the  accused  of  the  mili- 
tary offense  for  which  he  is  to  bo  tried,  and  to  enable  him  to  prepare  his  defense." 
And  see  Tytler,  209;  Kennedy,  69.  It  is  ably  remarked  by  Gould  (Pleading,  p.  4) 
that  "all  pleading  is  essentially  a  logical  process ;"  and  that,  in  analyzing  a  correct 
pleading,  "if  we  take  into  view,  with  what  is  expressed,  what  is  necessarily  sup- 
posed or  implied,  we  shall  find  in  it  the  elements  of  a  good  syllogism."  But  it  can 
hardly  be  expected  that  military  charges  in  general  will  stand  this  test. 

1919 31 


482  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Limit  of  time     1294.  No  officer  or  soldier  put  iii  arrest  shall  be  continued 

in  case  ot  arrest  . 

and  confinement,  in  confinement  more  than  eight  days,  or  until  such  time 
as  a  court-martial  can  be  assembled.  Seventieth  Article  of 
War. 

specification,  taken  together,  amount  to  a  statement  of  a  military  offense  either 
under  a  specific  article  or  under  the  general  article,  "No.  62.  (Ibid.,  par.  2.) 

There  can  be  no  legal  objection  to  charging  an  offense  as  a  "violation  of"  a  par- 
ticular article  of  war,  although,  in  general,  it  will  be  preferable  to  charge  it  by  its 
familiar  and  received  name— as  "drunkenness  on  duty,"  "misbehavior  before  the 
enemy,"  "desertion,"  etc.  (Ibid.,  225,  par. 3.) 

Where  an  offense  is  clearly  defined  in  a  specific  article,  it  is  irregular  and  improper 
to  charge  it  under  another  specific  article.  So,  where  the  article  in  which  the 
offense  is  defined  makes  it  punishable  with  a  specific  punishment  to  the  exclusion  of 
any  other,  it  is  error  to  charge  it  under  an  article,  such  as  the  sixty-second,  which 
leaves  the  punishment  to  the  discretion  of  the  court.  On  the  other  hand,  it  is  equally 
erroneous  to  charge  under  a  specific  article,  making  mandatory  a  particular  punish- 
ment, an  offense  properly  charged  only  under  article  62.  (Ibid.,  par.  4.) 

Where  a  specific  offense  is  charged  (i.  e.,  an  offense  made  punishable  by  an  article 
other  than  the  general— sixty-second-  article)  and  the  specification  does  not  state  facts 
constituting  such  specific  offense,  the  pleading  will  be  insufficient  as  a  pleading  of  that 
offense.  Legal  effect  may,  however,  be  given  to  a  pleading  if  the  charge  and  specifi- 
cation taken  together  amount  to  an  allegation  of  an  offense  cognizable  by  a  court- 
martial  under  article  62.  And  in  all  cases— whatever  be  the  form  of  the  charge  or 
specification — if  the  two  are  not  inconsistent,  and,  taken  together,  make  out  an 
averment  of  a  neglect  or  disorder  punishable  under  this  general  article,  the  pleading 
will  be  sufficient  in  law  and  will  constitute  a  legal  basis  for  a  conviction  and  sentence. 
(Ibid.,  p.  226,  par.  6.) 

It  is  illogical  and  faulty  pleading  to  charge  a  secondary  offense  in  lieu  of  the  actual 
or  principal  offense,  of  which  that  charged  was  merely  a  consequence  or  incident. 
But  where  the  act  committed  involves  several  distinct  offenses  the  party  may 
properly  be  arraigned  upon  the  same  number  of  separate  charges.  And  all  the 
offenses  with  which  an  officer  or  soldier  may  be  at  one  time  chargeable  should  if 
practicable  (and  if  the  same  are  sufficiently  grave)  be  charged  and  brought  to  trial 
together.  Undue  multiplication,  however,  of  charges,  or  forms  of  charge,  is  to  be 
avoided ;  thus  charges  should  not  in  general  be  added  for  minor  offenses  which  were 
simply  acts  included  in  and  going  to  make  up  graver  offenses  duly  charged.  It  may, 
indeed,  sometimes  be  expedient,  where  the  offenses  are  slight  in  themselves,  and  it  is 
deemed  desirable  to  exhibit  a  continued  course  of  conduct,  to  wait  before  preferring 
charges  till  a  series  of  similar  acts  have  been  committed,  provided  the  period  be  not 
unreasonably  prolonged ;  but  in  general  charges  should  be  preferred  and  brought  to 
trial  immediately  or  presently  upon  the  commission  of  the  offenses.  Anything  like 
an  accumulation  or  saving  up  of  charges  through  a  hostile  animus  on  the  part  of  the 
accuser  is  discountenanced  by  the  sentiment  of  the  service,  (a)  (Ibid..  226,  par.  7.) 

The  prosecution  is  at  liberty  to  charge  an  act  under  two  or  more  forms  where  itia 
doubtful  under  which  it  will  more  properly  be  brought  by  the  testimony.  (6)  In  the 
military  practice  the  accused  is  not  entitled  to  call  upon  the  prosecution  to  "  elect" 
under  which  charge  it  will  proceed  in  such  or,  indeed,  any  case.  (Ibid.,  227,  par.  8.) 

Where  there  are  two  sets  of  charges  against  an  accused  they  should,  if  practicable, 
be  consolidated  and  one  trial  be  had  upon  the  whole,  instead  of  two  trials,  one  upon 
each  set.  But  after  the  accused  has  been  arraigned  upon  certain  charges,  and  has 
pleaded  thereto,  and  the  trial  on  the  same  has  been  entered  upon,  new  and  addi- 
tional charges,  which  the  accused  has  had  no  notice  to  defend,  can  not  be  introduced 
or  the  accused  required  to  plead  thereto.  Such  charges  should  be  made  the  subject 


ficiency,"  "habitual  drunkenness,"  and  the  like,  will  be  avoided  by  good  pleaders. 
Such  charges,  indeed,  in  connection  with  specifications  setting  forth  actual  military 
neglects  or  disorders  (not  properly  chargeable  under  specific  articles),  may  be  sus- 
tained as  equivalent  to  charges  of  ' '  conduct  to  the  prej  udice  of  good  order  and  mili- 
tary discipline."  But  a  chargeof  "  worthlessness,"  with  specifications  setting  forth 
repeated  instances  of  arrests,  confinements  in  the  guardhouse,  or  trials  and  convic- 
tions for  slight  offenses  of  the  accused,  held  an  insufficient  pleading;  such  instances 
not  constituting  military  offenses,  but  merely  the  punishments  or  penal  conse- 
quences of  such  offenses.  (What  is  really  called  for  in  such  a  case  is  a  discharge 
of  the  soldier  under  the  fourth  article  of  war.)  A  specification  averring  a  general 
incapacity  induced  by  habitual  intoxication  does  not  set  forth  a  military  offense. 
The  accused  in  such  a  case  should  be  charged  with  the  acts  of  drunkenness  com- 
mitted as  separate  and  distinct  instances  of  offense. (c)  (Ibid.,  par.  10.) 

A  charge  expressed  in  too  general  terms  is  faulty  and  imperfect;  the  accused  is 
entitled  to  know  for  what  particular  act  he  is  called  to  account.  Thus  a  specifica- 
tion under  article  62,  in  a  case  of  an  officer,  which  set  forth,  not  a  specific  act  of 
offense,  but  an  habitual  course  of  conduct  as  incapacitating  the  accused  for  service 
or  for  the  performance  of  his  proper  duty,  held  seriously  defective  and  subject  to 
be  stricken  out  on  motion.  For  such  conduct,  indeed,  the  remedy  is  not  by  charge 
and  trial,  but  by  retirement  under  section  1252,  Revised  Statutes.  (Ibid.,  236.  par.  34.) 

A  charge  expressed  in  the  alternative— either  under  article  17  or  article  60— is 

a  See  G.  C.  M.  0. 71,  Headquarters  of  the  Army,  1879. 

b  "For  the  purpose  of  meeting  the  evidence  as  it  may  transpire."    State  v.  Bell, 
27  Md.,  675. 
c  See  Gr.  0. 11,  War  Department,  1873. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  483 

1295.  When  an  officer  is  put  in  arrest  for  the  purpose  of 
trial,  except  at  remote  military  posts  or  stations,  the  officer 
by  whose  order  he  is  arrested  shall  see  that  a  copy  of  the 
charges  on  which  he  is  to  be  tried  is  served  upon  him 

irregular  and  defective,  and,  upon  motion,  may  be  stricken  out  or  required  to  be 
amended.  (Ibid.,  par.  35.) 

The  specification  should  be  appropriate  to  the  charge.  A  charge  of  "conduct  to 
the  prejudice  of  good  order  and  military  discipline,"  with  a  specification  setting 
forth  a  violation  of  a  specific  article,  is  an  irregular  and  defective  pleading,  and  so 
of  course  is  a  charge  of  a  specific  offense  with  a  specification  describing  not  that  but 
a  different  specific  offense,  or  a  simple  disorder  or  neglect  of  duty.  (Ibid.,  p.  228, 
par.  12.) 

Where  a  specification  to  a  charge  preferred  by  a  superior  against  an  inferior  officer, 
instead  of  referring  to  the  former  in  the  third  person,  alleged  that  the  accused  ad- 
dressed abusive  language  to  "me,"  and  committed  an  assault  upon  "me."  without 
naming  or  otherwise  indicating  the  subject  of  the  abuse  or  assault,  held  that  such  a 
form,  though  supported  by  some  of  the  English  precedents,  was  not  sanctioned  by 
our  practice,  and  that,  on  objection  being  made  to  the  same  by  the  accused,  the  court 
would  properly  either  require  that  the  specification  be  amended,  or  that,  in  incorpo- 
rating the  charge  in  the  record,  the  name  of  the  preferring  officer  be  added.  (Ibid., 
p.  229,  par.  14.) 

A  specification,  in  alleging  the  violation  of  an  order  which  has  been  given  in  writ- 
ing, or  of  any  "written  obligation  —  as  an  oath  of  allegiance,  parole,  etc.  —  should  pref- 
erably set  forth  the  writing  verbatim,  or  at  least  state  fully  its  substance,  and  then 
clearly  detail  the  act  or  acts  which  constituted  its  supposed  violation.  (Ibid.,  230, 
pur.  16.) 

Allegations  of  time  and  place.  —  The  time  and  place  of  the  commission  of  the  offense 
charged  should  properly  be  averred  in  the  specification'm  order  that  it  may  appear 
that  the  offense  was  committed  within  the  period  of  limitation  fixed  by  the  one  hun- 
dred and  third  article,  and  in  order  to  enable  the  accused  to  understand  what  par- 
ticular act  or  omission  he  is  called  upon  to  defend,  (a)  A  reasonably  exact  allegation 
of  the  time  is  also  important  in  some  cases  —  especially  those  of  desertion  and  absence 
without  leave—  in  order  that  the  accused,  if  subsequently  brought  to  trial  for  the 
same  offense,  or,  what  is  the  same  thing  in  law,  for  an  offense  included  in  the  origi- 
nal offense,  may  be  enabled  (by  an  exhibition  of  the  record)  properly  to  plead  a  for- 
mer acquittal  or  conviction  of  that  offense.  (Ibid...  par.  17.) 

Where  the  exact  time  or  place  of  the  commission  of  the  offense  is  not  known  it  is 
frequently  preferable  to  allege  it  as  having  occurred  "on  or  about"  a  certain  date 
or  time,  or  "at  or  near"  a  certain  locality,  rather  than  to  aver  it  as  committed  on  a 
particular  day  or  between  two  specified  days,  or  at  a  particular  place.  There  is  no 
defined  construction  to  be  placed  upon  the  words  "  on  or  about  as  used  in  the  alle- 
gation of  time  in  a  specification.  The  phrase  cannot  be  said  to  cover  any  precise 
number  of  days  or  latitude  in  time.  It  is  ordinarily  used  in  military  pleading  for 
the  purpose  of  indicating  some  period,  as  nearly  as  can  be  ascertained  and  set  forth, 
at  or  during  which  the  offenses  charged  are  believed  to  have  been  committed,  in 
cases  where  the  exact  day  can  not  well  be  named,  And  the  same  is  to  be  said  as  to 
use  of  the  words  "at  or  near"  iu  connection  with  the  averment  of  place.  These 
terms  "on  or  about"  and  "at  or  near"  are,  however,  not  infrequently  (though 
unnecessarily)  employed  in  practice  where  the  exact  time  or  place  is  known  and 
can  readily  be  alleged.  (Ibid.,  par.  18.) 

The  allegation  of  time  in  a  specification  should  be  as  nearly  defined  as  the  facts 
will  permit;  but  where  the  act  or  acts  charged  extended  over  a  considerable  space 
of  time  it  may  be  necessary  to  cover  such  period  in  the  allegation.  Thus  allega- 
tions of  "from  March  to  September,  1887,"  and  "from  May  to  October,  1888,"  have 
been  countenanced  in  a  case  in  which  the  accused  was  charged  with  the  neglect  of  a 
duty  the  performance  of  which  was  thus  continuous.  (See  G.  C.  M.  0.  21  of  1889.) 
(Ibid.  ,236,  par.  36.) 

The  same  exactness  in  the  averment  of  time  is  in  general  scarcely  required  where 
the  offense  charged  is  one  of  omission  as  \\  here  it  is  one  of  the  commission  of  a 
specific  act.  It  is  sufficient  in  the  former  case  to  allege  that  the  offense  occurred 
between  certain  named  dates  not  unreasonably  separated.  So,  an  offense  of  com- 
mission, which  probably  was  not  completed,  or  may  not  have  been  completed  on 
any  particular  day,  may  be  similarly  charged.  Thus  held  that  the  allegations  of 
time  and  place  were  sufficient  in  a  specification  in  which  it  was  set  forth  that  the 


offense  charged  (which  consisted  of  an  improper  disposition  of  public  properly)  was 
committed  by  the  accused  "while  en  route  between  Austin,  Tex.,  and  Waco,  Tex., 
between  the  5th  and  25th  days  of  May,  1867."  (Ibid.,  231.  par.  19.) 

But  where  it  was  alleged  in  a  specification  that  the  accused  was  drunk  on  duty  at 
some  time  or  times  during  a  period  of  seventy  days,  held  that  the  specification  did 
not  give  sufficient  notice  to  the  accused  of  the  specific  offense  which  he  was  required 
to  defend,  and  was  therefore  uncertain  and  insufficient,  (b)  (Ibid.) 

Where  a  specification  alleged  that  the  accused  was  absent  without  leave  at  various 
times  between  two  dates,  twenty  days  apart,  held  that  the  same  was  defective  and 
subject  to  exception  as  being  double,  each  such  absence  being  a  substantive  and  dis- 

aAs  to  the  latitude  allowable  in  the  allegation  of  time  in  military  pleadings,  com- 
pare 1  Opin.  Att.  Gen.,  295,  296.  In  the  civil  practice,  "  nothing  is  better  settled  than 
that  proof  of  guilt  is  not  confined  to  the  day  mentioned  in  the  indictment.  It  may 
extend  back  to  any  period  previous  to  the  finding  of  the  bill  and  within  the  statu- 
tory limit  for  prosecuting  the  offense.  ''  McBryde  v.  State,  34  Ga.,  203. 

&  Compare  cases  in  G.  0.  193,  Army  of  the  Potomac,  1  862  :  G.  0.  98,  Department  of 
New  Mexico,  1862. 


484  THE   MILITARY   LAWS   OF   THE  UNITED   STATES. 

within  eight  days  after  his  arrest,  and  that  he  is  brought 
to  trial  within  ten  days  thereafter,  unless  the  necessities 

tinct  offense,  (a)  X,  471.  But  where  the  specification  to  a  charge  of  violation  of  the 
sixtieth  article  alleged  the  presentation  by  the  accused  of  a  fraudulent  claim  for 
rations  furnished  for  recruits  and  also  for  lodgings  furnished  for  the  same  recruits 
at  the  same  time,  held  that  the  specification  related  to  one  transaction  and  was  not 
therefore  to  be  necessarily  regarded  as  double  or  defective,  in  view  of  the  liberal  rules 
of  pleading  applicable  to  military  charges.  (Ibid.,  p.  229,  par.  15.) 

Where  time  or  place  is  omitted  to  be  averred,  or  is  averred  without  sufficient 
definiteness,  and  the  defect  is  excepted  to  by  the  accused  on  being  called  upon  to  plead, 
the  court  will  probably  direct  that  an  amendment  be  made.  But  where  in  either 
such  case  no  objection  'is  interposed  by  the  accused,  the  proceedings  will  be  sufficient 
in  law  provided  the  time  and  place  of  the  offense  can  be  made  out  with  reasonable 
certainty  from  the  testimony  in  connection  with  the  specifications.  If  otherwise, 
the  proceedings  will,  where  practicable,  properly  be  returned  to  the  court  for  cor- 
rection, or,  where  this  can  not  be  done,  will,  in  general,  probably  be  disapproved. 
And  where  the  offense  is  alleged  to  have  been  committed  on  a  particular  day,  and 
the  evidence  shows  that  it  was  committed  on  quite  a  different  day,  in  such  case, 
provided  time  is  not  of  the  essence  of  the  offense,  and  the  specific  act  charged  is  suffi- 
ciently identified  by  the  other  testimony,  the  variance  between  the  allegation  and 
the  proof  will  not  constitute  a  fatal  defect,  and  need  not  induce  a  disapproval  of  the 
sentence  where  there  has  been  a  conviction.  A  return,  however,  of  the  record  to 
the  court  for  correction,  if  practicable,  would  well  be  resorted  to  by  the  reviewing 
officer  before  taking  final  action.  (Dig.  J.  A.  Gen.,  231,  par.  20.) 

Matter  of  evidence  in  pleading.— While  it  is  in  general  irregular  to  plead  matter  of 
evidence,  there  is  no  objection  to  noting  in  brief  in  the  specification  the  immediate 
result  or  effect  of  the  act  charged,  as  a  circumstance  of  description  illustrating  the 
character  and  extent  of  the  offense  committed.  Thus,  while  a  homicide,  if  amounting 
to  murder,  and  capital  under  section  5339,  Revised  Statutes,  or  by  the  law  of  the 
State,  etc.,  can  not  as  such  be  made  the  subject  of  a  military  charge  in  time  of  peace 
(see  sixty-second  article),  yet  a  capital  homicide,  where  it  has  been  committed  in 
connection  with  or  as  a  consequence  of  a  specific  military  offense  charged  against 
the  accused,  as,  for  example,  "mutiny,"  or  "offering  violence  to  a  superior  officer," 
may  properly  be  stated  in  the  conclusion  of  the  specification,  as  matter  of  aggrava- 
tion and  as  "indicating  the  animus  of  the  accused  or  the  amount  of  force  employed. 
(Ibid. ,232,  par.  21.) 

Joint  charges. — Properly  to  warrant  the  joining  of  several  persons  in  the  same 
charge  and  the  bringing  them  to  trial  together  thereon,  the  offense  must  be  such  as 
requires  for  its  commission  a  combination  of  action  and  must  have  been  committed 
by  the  accused  in  concert  or  in  pursuance  of  a  common  intent.  The  mere  fact  of 
their  committing  the  same  offense  together  and  at  the  same  time,  although  material 
as  going  to  show  concert,  does  not  necessarily  establish  it.  Thus  the  fact  that  sev- 
eral soldiers  have  absented  themselves  together  without  leave  will  not,  in  the  ab- 
sence of  evidence  indicating  a  conspiracy  or  concert  of  action,  justify  their  being 
arraigned  together  on  a  common  charge,  for  they  may  merely  have  been  availing 
themselves  of  the  same  convenient  opportunity  for  leaving  their  station.  (Ibid., 
par.  22.) 

Desertion,  of  which  the  gist  is  a  certain  personal  intent,  is  not  ordinarily  charge- 
able as  a  joint  offense.  (6)  Where  two  or  more  soldiers  have  deserted  together  as 
the  result  of  a  concerted  plan,  they  may  properly  be  jointly  charged  with  "conspir- 
acy to  desert,  to  the  prejudice  of  good  order  and  military  discipline^'  (or  with  desertion 
in 'the  execution  of  a  conspiracy — G.  0. 21  of  1891),  or  each,  in  addition  to  being  charged 
with  desertion,  may  also  be  severally  charged  with  engaging  in  such  conspiracy- 
In  the  absence  of  such  additional  charge,  the  fact  of  concert  may  of  course  be  put 
in  evidence  under  the  charge  of  desertion  as  illustrating  the  animus  of  the  act  com- 
mitted. (Ibid.) 

By  whom  preferred,—  Military  charges,  though  commonly  originating  with  military 
persons,  may  be  initiated  by  civilians ;  indeed,  it  is  but  performing  a  public  duty  for 
a  civilian,  who  becomes  cognizant  of  a  serious  offense  committed  by  an  officer  or  sol- 
dier, to  bring  it  to  the  attention  of  theproper  commander.  So  a  charge  may  originate 
with  an  enlisted  man.  But,  by  the  usage  of  the  service,  all  military  charges  should  be 
formally  preferred  by,  i.  e.,  authenticated  by  the  signature  of,  a  commissioned  officer. 
Charges  proceeding  from  a  person  outside  the  Army,  and  based  upon  testimony  not 
in  the  possession  or  knowledge  of  the  military  authorities,  should,  in  general,  be 
required  to  be  sustained  by  affidavits  or  other  reliable  evidence,  as  a  condition  to 
their  being  adopted.  (Ibid.,  233,  par.  23.) 

Any  officer  may  prefer  charges ;  an  officer  is  not  disqualified  from  preferring  charges 
by  the  fact  that  he  is  himself  under  charges  or  in  arrest.  Charges  should  be  pre- 
ferred to  the  authority  empowered  to  convene  the  court  for  their  trial.  The  signing 
of  charges,  like  orders,  with  the  name  of  an  officer,  adding— "by  the  order  of"  his 
commander,  is  unusual  and  objectionable.  Charges,  where  not' signed  voluntarily 
by  the  officer  by  whom  they  are  preferred,  are,  in  practice,  usually  subscribed  by 
the  judge-advocate  of  the  court.  (Ibid.,  par.  24.) 

In  cases  where  charges  preferred  against  an  officer  are  apparently  susceptible  of 
a  reasonable  explanation,  it  is  not  unusual,  especially  where  the  charges  are 

a  In  the  military,  as  in  the  civil,  practice,  double  pleading — i.  e.,  specifications  set- 
ting forth  two  (or  more)  distinct  offenses  (especially  when  chargeable  under  different 
articles  of  war)  are  properly  condemned,  and  in  'sundry  cases  the  conviction  and 
sentence  have  been  disapproved  on  account  of  the  duplicity  in  law  of  the  pleadings. 
See  G.  C.  M.  0. 80,  War  Department,  1875;  G.  O.  3,  83,  Department  of  the  Missouri, 
1863 ;  id.  49,  Department  of  the  Ohio,  1864. 

6  See  G.  0. 78,  War  Department,  1872,  issued  by  the  Secretary  of  War  in  accordance 
with  opinions,  previously  given,  of  the  Judge- Advocate-General. 


THE   MILITARY   LAWS   OP   THE   UNITED   STATES.  485 

of  the  service  prevent  such  trial  ;  and  then  he  shall  be 
brought  to  trial  within  thirty  days  after  the  expiration  of 

E  referred  by  an  inferior  against  a  superior,  to  afford  the  officer  charged  an  oppor- 
inity  to  make  explanation  before  it  be  determined  whether  to  bring  him  to  trial. 
(Ibid.,  234,  par.  25.) 

It  is  a  reprehensible  practice  to  allow  charges  to  lie  long  dormant  before  being 
preferred.  Charges  should  not  be  delayed,  but  should  be  brought  to  trial  as  soon  as 
practicable  and  while  the  evidence  is  fresh.  A  delay  of  five  months  remarked  upon 
as  prejudicial  to  the  administration  of  justice  and  unfair  to  the  accused.  (Ibid.,  235, 
par.  30.) 

Commanding  officers  are  not  required  to  bring  every  dereliction  of  duty  before  a 
court  for  trial,  but  will  endeavor  to  prevent  their  recurrence  by  admonitions,  with- 
holding of  privileges,  and  taking  such  steps  as  may  be  necessary  to  enforce  their 
orders.  (Par.  930,  A.  R.,  1895.) 

Noncommissioned  officers  above  the  rank  of  corporal  will  not,  if  they  object 
thereto,  be  brought  to  trial  beftre  regimental,  garrison,  or  summary  courts-martial, 
without  the  authority  of  the  officer  competent  to  order  their  trial  by  general  court- 
martial;  nor  will  sergeants  of  the  post  noncommissioned  staff  or  hospital  stewards 
be  reduced,  but  they  may  be  dishonorably  discharged  whenever  reduction  is 
included  in  the  limit  of  punishment.  (Par.  931,  ibid.) 

Charges,  though  prepared  in  the  office  of  the  Judge-  Advocate-General,  are  not  to 
be  signed  by  him.  If  not  signed  by  the  officer  actually  preferring  them,  they  will 
properly  be  authenticated  by  the  signature  of  the  acting  judge-advocate  o'f  the 
department,  or,  preferably,  by  the  judge-advocate  of  the  court.  (Dig.  Opin.  J.  A. 
Gen.,  235,  par.  31.) 


when  the 
By  pleadi 

I5ut,  to  be  taken  cognizance  of  by  the  court,  it  is  notessential  that  a  charge  should 
be  signed  by  any  officer.  If,  though  not  so  signed,  it  be  duly  officially  transmitted 
by  the  convening  commander,  or  other  competent  superior  authority,  to  the  court, 
either  directly  or  through  the  judge-advocate  "fortrial,"  or  "for  the  action  of  the 
court,"  or  in  terms  to  such  effect,  it  is  sufficiently  authenticated  for  the  purposes 
of  trial,  and  trial  upon  it  may  be  proceeded  with  by  arraignment  thereon  of  the 
accused.  (Ibid.,  par.  33.) 

Reference  for  trial.  —  In  general,  charges  can  regularly  and  properly  be  ordered  to 
be  tried,  or  transmitted  for  trial  to  the  court,  only  by  the  authority  of  the  officer 
convening  the  court  or  that  of  his  superior.  An  inferior  to  the  convening  officer  can 
not  properly  refer  charges  to  the  court  for  trial  except  under  some  specific  or  gen- 
eral authority  received  from  that  officer.(a)  The  mere  fact,  however,  that  a  court 
has  proceeded  to  the  trial  of  charges,  referred  to  it  without  due  authority  by  a  com- 
mander inferior  to  the  one  who  convened  the  court,  can  not  affect  the  legality  of  the 
finding  or  sentence  in  the  case.  (Ibid.,  234,  par.  26.) 

Withdrawal  of  charges.  —  A  withdrawal  of  charges  constitutes  no  legal  bar  to  their 
being  subsequently  revived  and  repreferred.  Charges,  however,  once  formally 
withdrawn  will  not  in  general  properly  be  revived  except  upon  new  material  evi- 
dence being  obtained.  Charges  once  accepted  as  a  sufficient  basis  for  action,  by  the 
commander  competent  to  convene  a  court  for  their  trial,  can  not  properly  be  with- 
drawn except  by  his  authority.  (Ibid.,  234,  par.  27.) 

Amendment  of  charges.—  How  far  charges  may  be  amended  by  the  judge-advocate 
before  the  organization  of  the  conrt  depends  mainly  upon  his  authority,  general  or 
special,  to  make  amendments.  After  the  arraignment,  amendments  of  form  may 
always  be  rr.ade,  with  the  assent  of  theaccused  or  by  the  direction  of  the  court  ;  and 
so  may  slight  amendments  of  substance  not  so  modifying  the  pleading  as  to  make 
it  a  charge  of  a  new  and  distinct  offense.  An  amendment  so  substantial  as  mate- 
rially to  modify  the  "matter"  before  the  court,  will  not  in  general  be  authorized 
(see  eighty-fourth  article),  and  any  amendment  whatever  of  substance  should  be 
alloweu  by  the  court  with  caution  and  subject  to  the  right  of  the  accused  to  apply 
for  a  continuance.  (See  ninety-third  article.)  (Ibid.,  par.  28.) 

The  judge  advocate  is  not  unfrequently  directed  to  prepare  or  reframe  charges; 
but  where  charges,  already  formally  preferred,  are  transmitted  to  him  for  prosecu- 
tion, he  should  not  assume  to  modify  them  in  material  particulars  fti  the  absence  of 
authority  from  the  convening  officer.  While  he  may  ordinarily  correct  obvious  mis- 
takes of  form  or  patent  or  slight  errors  in  names,  dates,  amounts,  etc.,  he  can  not 
without  such  authority  make  substantial  amendments  in  the  allegations,  or  —  least 
of  all—  reject  or  withdraw  a  charge  or  specification,  or  enter  a  nolle  prosequi  as  to 
the  same,  or  substitute  a  new  and  distinct  charge  for  one  transmitted  to  him  for 
trial  by  the  proper  superior,  (b)  (Ibid.,  p.  458,  par.  10.) 

A  list  of  the  proposed  witnesses  is  no  part  of  the  military  charge,  though  such  a 
list  may  properly  be  and  is  not  unfrequently  appended  to  a  charge.  In  serving 
upon  the  accused  a  copy  of  the  charges,  it  is  not  essential,  though  the  better  prac- 
tice, to  add  a  copy  of  the  list  of  witnesses  where  one  is  appended  to  the  original 
charges.  Appending  such  a  list  does  not  preclude  the  prosecution  from  calling 
witnesses  not  named  therein.  (Ibid.,  235,  p.  29.) 

A  middle  name  or  initial  is  no  part  of  a  person's  name  in  law,  and,  except  where 
it  is  necessary  to  identify  the  individual,  may  be  omitted  from  the  charge  without 

a  This  rule,  though  not  always  insisted  upon  in  practice,  has  been  repeatedly  en- 
joined in  express  terms  by  department  commanders.  See,  for  example,  G.  O.  67, 
Department  of  Arkansas,  1864;  G.  O.  88,  Department  of  Dakota,  1869;  G.  O.  8,  De- 
partment of  Texas,  1874. 

fcSee  G.  O.  64;  Department  of  the  Cumberland,  1867;  ibid.  98,  ibid.,  1868;  ibid.  85, 
Department  of  the  South,  1874;  G.  C.  M.  O.  36,  42,  Department  of  the  Platte,  1877; 
ibid.  13,  ibid.,  1878;  ibid.  48,  Military  Division  of  Pacific  and  Department  of  Cali- 
fornia, 1880. 


486  THE   MILITARY   LAWS   OF    THE    UNITED    STATES. 

said  ten  days.1  If  a  copy  of  the  charges  be  not  served,  or 
the  arrested  officer  be  not  brought  to  trial,  as  herein  re- 
quired, the  arrest  shall  cease.2  But  officers  released  from 
arrest,  under  the  provisions  of  this  article,  may  be  tried, 
whenever  the  exigencies  of  the  service  shall  permit,  within 
twelve  months  after  such  release  from  arrest.3  Seventy-first 
Article  of  War. 
written  state-  1296.  No  provost  marshal,  or  officer  commanding  a  guard, 

ment  of  offense;  .  .  .          ,    , 

refusal  of  pro  shall  refuse  to  receive  or  keep  any  prisoner  committed  to 

receive*™'      to  his  charge  by  an  officer  belonging  to  the  forces  of  the 

67  Art.  war.    jjnited  gtatesj  provided  the  officer  committing  shall,  at 

the  same  time,  deliver  an  account  in  writing,  signed  by 

himself,  of  the  crime  charged  against  the  prisoner.     Sixty  - 

seventh  Article  of  War.* 

Report  of  pris-  1297.  Every  officer  to  whose  charge  a  prisoner  is  com- 
OI68SArt.  war.  mitted  shall,  within  twenty-four  hours  after  such  commit- 
ment, or  as  soon  as  he  is  relieved  from  his  guard,  report 
in  writing,  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name  of 
the  officer  committing  him;  and,  if  he  fails  to  make  such 
report,  he  shall  be  punished  as  a  court-martial  may  direct. 
Sixty -eighth  Article  of  War. 

affecting  the  validity  of  the  finding  or  execution  of  the  sentence.  So  a  misnomer 
in  a  charge,  consisting  of  an  erroneous  middle  name  or  initial,  may  be  disregarded  in 
a  charge  unless  the  accused  moves  to  strike  out  or  interposes  an  objection,  in  the 
nature  of  a  plea  in  abatement,  when  he  must  also  state  his  true  name.  The  charge 
may  then  be  amended  accordingly  in  court,  without  delaying  the  proceedings. 
(Ibid.,  236,  par.  37.) 

A  material  amendment  of  a  charge  should  properly  be  made  before  the  actual  trial. 
Where  a  court-martial,  after  the  trial  was  concluded,  directed  a  specification  to  be 
amended  so  as  to  render  it  more  definite  as  to  time  and  place,  and  then  caused  the 
accused  to  be  arraigned  and  to  plead  over  again,  uunc  pro  tune,  held,  that  its  action 
was  without  sanction  of  law  or  precedent.  (Ibid.,  par.  38.) 

A  failure  at  the  arraignment  to  take  notice  of  a  variance  between  the  form  of  a 
specification  to  which  the  accused  is  called  upon  to  plead  and  such  specification  as  it 
appeared  in  tne  copy  of  the  charges  served  at  his  arrest,  is  a  waiver  of  the  objection, 
and  the  same  can' not  be  taken  advantage  of  at  a  subseq uent  stage  of  the  proceedings. 
(Ibid.,  237,  par.  39.) 

Statement  of  enlistments. — The  statement  as  to  enlistments,  discharges,  etc.,  re- 
quired  by  paragraph  927  Army  Regulations,  1895,  to  be  furnished  with  the  original 
charge  to  the  convening  authority,  is  not  intended  to  be  accompanied  by  a  declara- 
tion, on  the  part  of  the  commanding  officer  of  the  accused  as  to  his  present  character. 
The  regulation  does  not  call  for  the  officer's  opinion  on  the  subject,  or  contemplate 
that  the  character  of  the  accused  will  be  taken  into  consideration  at  this  time.  ( Ibid., 
par.  40.) 

1  Though  an  officer  in  whose  case  the  provisions  of  this  article  in  regard  to  service 
of  charges  and  trial  have  not  been  complied  with  is  entitled  to  be  released  from  arrest, 
he  is  notauthorized  to  release  himself  therefrom.    If  he  be  not  released  in  accordance 
with  the  article,  he  should  apply  for  his  discharge  from  arrest,  through  the  proper 
channels,  to  the  authority  by  whose  order  the  arrest  was  imposed  or  other  proper 
superior.    (Dig.  J.  A.  Gen.,  p.  80,  par.  1.) 

The  term  'within  ten  days  thereafter,"  held  to  mean  after  his  arrest.    (Ibid.,  par.  2.) 

2  Held  a  sufficient  compliance  with  the  requirement  as  to  the  service  of  charges,  to 
have  served  a  true  copy  of  the  existing  charges  and  specifications,  though  the  list  of 
witnesses  appended  to  the  original  charges  was  omitted,  and  though  the  charges 
themselves  were  not  in  sufficient  legal  form,  and  were  intended  to  be  amended  and 
redrawn.     (Ibid.,  p.  81,  par.  3.) 

8  The  fact  thatcasesof  officers  putin  arrest  "atremote  military  posts  or  stations  '  are 
excepted  from  the  application  of  the  article  does  not  authorize  an  abuse  of  the  power 
of  arrest  in  these  cases.  And  where  in  such  a  case  an  arrest,  considering  the  facili- 
ties of  communication  with  the  department  headquarters  and  other  circumstances, 
was  in  fact  unreasonably  protracted  without  trial,  held  that  the  officer  was  entitled 
to  be  -eleased  from  arrest  upon  a  proper  application  submitted  for  the  purpose.  (Ibid., 
par.  4. ) 

4  See  in  this  connection  the  English  case  of  Wolton  v.  Gavin  (16  Q.  B.,  70),  cited  in 
Ives's  Mil.  Law,  p.  74. 


THE   MILITARY    LAWS    OF   THE   UNITED    STATES.  487 


1298.  Any  officer  who  presumes,  without  proper  author- 

ity,  to  release  any  prisoner  committed  to  his  charge,  orpg°flt  escape* 
suffers  any  prisoner  so  committed  to  escape,  shall  be  pun-    69  Art.  war. 
ished  as  a  court-martial  may  direct.    Sixty-ninth  Article  of 
War. 

GENERAL   COURTS-MARTIAL. 
CONSTITUTION  AND   COMPOSITION. 

1299.  Any  general  officer  commanding  an  army,  a  Terri- 
torial  Division  or  a  Department,  or  colonel  commanding 
separate  Department  may  appoint  general  courts-martial    72  Art.  war 
whenever  necessary.    But  when  any  such  commander  is 

the  accuser  or  prosecutor  of  any  officer  under  his  com- 
mand the  court  shall  be  appointed  by  the  President  $  and 
its  proceedings  and  sentence  shall  be  sent  directly  to  the 
Secretary  of  War,  by  whom  they  shall  be  laid  before  the 
President,  for  his  approval  or  orders  in  the  case.1  Seventy- 
second  Article  of  War.  Act  of  July  5,  1884  (23  Stat.  L.,  121). 

1  This  article  specifies  by  what  military  officers  a  general  court-martial  may  be  con- 
stituted. The  President  of  the  United  States  has  the  power  to  order  such  a  court, 
as  the  constitutional  Commander  in  Chief  of  the  Army,  irrespective  of  this  article 
or  other  statute.  (Dig.  Opin.  J.  A.  Gen.  81,j>ar.  1) 

The  President,  as  Commander  in  Chief,  has  a  right,  virtute  officio.  to  appoint  a 
general  court-martial.  Runkle  v.  TL  S..  19  C.  Cls.  R-.  396.  A  power  to  appoint 
courts-martial  devolved,  by  statute,  on  any  other  officer  is  shared  by  the  President, 
though  he  be  not  named  therein.  Since  the  earliest  legislation  of  our  Government  it 
has  been  understood  and  intended  that  powers  granted  to  general  officers  in  regard 
to  courts  martial  are  thereby  granted  to  the  President.  His  name  is  to  be  understood 
as  written  in  every  statute  which  confers  upon  a  military  officer  military  authority. 
Swaim  v.  TJ.  S.,  28  C.  Cls.  E,.,  173. 

The  President  is  empowered  to  convene  general  courts-martial,  not  merely  in  the 
class  of  cases  specified  in  the  seventy-  second  article  of  war  (viz,  where  a  military 
officer,  thereby  authorized  to  convene  such  a  court,  is  the  "accuser  or  prosecutor"  of 
an  officer  in  his  command  whom  it  is  desired  to  bring  to  trial),  but,  generally  and  in 
any  case,  by  virtue  of  his  authority  as  Commander  in  Chief  of  the  Army.  As  such 
he  is  authorized  to  give  orders  to  his  subordinates,  and  the  convening  of  a  court- 
martial  is  simply  the  giving  of  an  order  to  certain  officers  to  assemble  as  a  court  and 
exercise  certain  powers  conferred  upon  them,  when  so  assembled,  by  the  Articles  of 
War.  This  general  power  has  been  exercised  in  repeated  instances  by  the  President 
since  the  formation  of  the  Government.  Indeed,  if  the  same  could  not  be  exercised, 
it  would  be  impracticable,  in  the  absence  of  an  assignment  of  a  general  officer  to 
command  the  Army,  to  administer  military  justice  in  a  considerable  class  of  cases  of 
officers  and  soldiers  not  under  the  command  of  any  department,  etc.,  commander,  as 
a  large  proportion  of  the  officers  of  the  general  staff,  for  example,  (a)  (Dig.  Opin. 
J.  A.  G.,  605,  par.  1) 

A  convening  of  a  general  court-martial  nominally  by  the  Secretary  of  War  is  in 
law  a  convening  by  the  President,  and  therefore  as  legal  as  if  the  President  himself 
had  signed  the  order.  (Ibid.,  606,  par.  2.) 

This  article,  in  empowering  certain  commanders  to  constitute  the  superior  courts- 
martial,  makes  them  the  judges  in  general  of  the  expediency  of  ordering  such  courts 
in  particular  instances.  Except  where  specially  authorized  to  do  so  by  law  or  reg- 
ulation, an  officer  or  soldier  can  not  demand  a  court-martial  in  his  own  case.  (Ibid., 
81,  par.  2.) 

Where  a  commander  empowered  by  this  article  to  convene  a  general  court-martial 
declines,  in  the  exercise  of  his  discretion,  to  approve  charges  submitted  to  him  by  an 
inferior  and  to  order  a  court  thereon,  his  decision  should  in  general  be  regarded  as 
final  (Ibid.,  par.  3.) 

The  authority  to  order  a  court  under  this  article  is  an  attribute  of  command.  Thus 
a  department  commander,  detached  and  absent  from  his  command  for  any  considera- 
ble period  by  reason  of  having  received  a  leave  of  absence  (whether  of  a  formal  or 
in  formal  character),  or  having  been  placed  upon  a  distinct  and  separate  duty  (as  that 

a  The  authority  of  the  President  as  Commander  in  Chief  to  institute  general 
courts-martial  has  been  in  fact  exercised  from  time  to  time,  from  an  early  period,  in 
a  series  of  cases,  commencing  with  those  of  Brigadier-  General  Hull,  Mai  or-  General 
Wilkinson,  and  Major-General  Gaines,  tried  in  1813-1816,  and  including  that  of 
Brevet  Major-General  Twiggs,  tried  in  1858.  His  authority  in  this  particular  has 
been  in  substance  affirmed  by  the  Judiciary  Committee  of  the  Senate,  in  Report  No. 
868,  dated  March  3,  1879,  Forty  -fifth  Congress,  third  session.  (A  single  member  pf 
the  committee  apparently  dissented,  in  a  subsequent  report  of  April  7,  1879,  Mis. 
Doc.  No.  21,  Forty-sixth  Congress,  firat  session.) 


488  THE   MILITARY   LAWS    OF   THE   UNITED   STATES. 

Who  may  con-     1300.  In  time  of  war  the  commander  of  a  division,  or  of 

vene  in  time  of 

war.  a  separate  brigade  of  troops,  shall  be  competent  to  appoint 

Dec.  24,  1861*  c.  a  general  court-martial.     But  when  such  commander  is  the 

3,  v.  12,  p.  330.  ,         ,  . 

accuser  or  prosecutor  01  any  person  under  his  command, 
the  court  shall  be  appointed  by  the  next  higher  com- 
mander.1 Seventy-third  Article  of  War. 

of  a  member  of  a  court  or  board  convened  outside  his  department,  for  example),  is 
held  to  be  incompetent  during  such  absence  to  order  a  general  court-martial  as  de- 
partment commander,  even  though  no  other  officer  has  been  assigned  or  has  succeeded 
to  the  command  of  the  department.  (Ibid.,  82,  par.  5.) 

Nor  can  a  department  commander,  thus  absent,  exercise  such  authority  through  a 
staff  officer  or  other  subordinate,  or  delegate  the  same  to  a  subordinate  to  be  exer- 
cised by  him.  Nor,  where  a  general  court-martial  duly  convened  by  a  department 
commander  has,  at  u  time  when  the  commander  is  thus  absent  from  his  command, 
been  reduced,  by  an  incident  of  the  service,  below  five  members,  can  another  member 
legally  be  detailed  upon  the  court,  by  the  assistant  adjutant-general,  or  other  subor- 
dinate officer  remaining  in  charge  of  the  headquarters  ;  since  such  a  detail  would  be 
an  exercise  of  a  portion  of  the  authority  vested  by  this  article  in  the  commander, 
and  which  can  in  no  part  be  delegated.  (Ibid.) 

An  assistant  adjutant-general,  or  other  staff  officer  of  a  department  commander,  is 
not  empowered,  of  his  own  authority,  in  the  absence  of  the  commander,  to  relieve 
an  officer  duly  detailed  upon  a  court-martial  by  such  commander,  any  more  than  he 
is  so  empowered  to  detail  a  new  officer  as  a  member  of  such  a  court.  (Ibid.,  88, 
par.  7.)  See  also,  in  this  connection,  MANUAL  FOR  COURTS-MARTIAL,  pp.  9-11. 

CONVENING  OFFICER  AS  ACCUSER  OR  PROSECUTOB. 

To  fix  upon  the  commander  who  convened  the  court  the  character  of  "accuser  or 
prosecutor"  it  is  not  essential  that  he  should  have  signed  the  charges  on  which  the 
accused  was  tried.  (Ibid.,  p.  82,  par.  6.) 

The  mere  fact  that  a  general  court-martial  is  convened  by  a  department  commander 
does  not  make  such  commander  an  "accuser  or  prosecutor"  in  the  sense  of  this  arti- 
cle. (a)  A  department  commander  is  Hot  an  "accuser  or  prosecutor"  when,  upon 
information  of  misconduct  duly  laid  before  him,  he  orders  the  acting  judge-advocate 
of  the  department,  or  the  colonel  commanding  the  regiment,  to  proceed  to  bring  the 
offender  to  trial,  this  being  a  part  of  his  due  and  regular  supervision  and  command. 
(Ibid.,  84,  par.  11.) 

Where  the  commander  who  convened  the  court  had  also  to  do  with  the  preparing 
or  preferring  of  the  charges,  the  question  whether  he  is  to  be  regarded  as  having 
been  the  "accuser  or  prosecutor"  of  the  accused  in  the  sense  of  this  article  is  mainly 
to  be  determined  by  his  animus  in  the  matter.  If,  when  the  facts  of  the  alleged 
offense  are  communicated  to  him,  he  determines  that  the  same  constitute  a  sufficient 


and  proper  ground  for  a  trial,  and  thereupon  directs  a  suitable  officer,  as  an  officer  of 
his  staff,  or  the  commanding  officer  of  the  regiment  or  company  of  the  accused,  to 
prepare  or  prefer  the  charges,  he  acts  simply  in  the  due  performance  of  an  official 
duty  and  not  as  "  accuser  or  prosecutor."  (6)  Nor  is  his  action  any  the  less  official 
if,  in  the  desire  to  have  the  proceedings  regular  and  effectual,  he  himself  directs  as 
to  the  form  of  the  charges,  or,  after  the  same  are  prepared,  revises  them  so  that  they 
shall  sufficiently  set  forth  the  alleged  offenses.  Much  less  is  he  to  be  deemed  an 
"accuser  or  prosecutor"  where  he  causes  the  charges  to  be  preferred  and  proceeds 
to  convene  the  court  by  the  direction  of  the  Secretary  of  War  or  a  competent  mili- 
tary superior. 

On  the  other  hand,  where  he  himself  initiates  the  charge,  out  of  a  hostile  animus 
toward  the  accused  or  a  personal  interest  adverse  to  him,  or  from  a  similar  motive 
adopts  and  makes  his  own  a  charge  initiated  by  another,  he  is  to  be  deemed  an 
"accuser  or  prosecutor  "  within  the  article.  Nor  'is  he  the  less  so  where,  though  he 
has  no  personal  feeling  or  interest  in  the  case,  he  has  become  possessed  with  the 
conviction  that  the  accused  is  guilty  and  deserves  punishment,  and  in  this  convic- 
tion initiates  or  assumes  as  his  own  the  charge  or  the  prosecution.  For  in  this 
case  equally  as  in  the  former  he  is  unfit  to  be  a  j  udge  upon  the  merits  of  the  case  ;  in 
the  one  instance  he  is  too  much  prejudiced  to  be  qualified  to  do  justice  ;  in  the  other 
ne  has  condemned  the  accused  beforehand.  (Ibid.,  82,  par.  7.)  See  also  ibid.,  84, 
pars.  8,  9,  and  10. 

1  On  August  31,  1864,  was  issued  from  the  War  Department  a  general  order,  No. 

251  of  that  year,  which  directed  as  follows  :  "  Where  a  post  or  district  command  is 

composed  of  mixed  troops,  equivalent  to  a  brigade,  the  commanding  officer  of  the 

department  or  Army  will  designate  it  in  orders  as  '  a  separate  brigade,  '  and  a  copy 

ol  such  order  will  accompany  the  proceedings  of  any  general  court-martial  convened. 

Dy  such  brigade  commander.    Without  such  authority,  commanders  of  posts  and 

districts  having  no  brigade  organization  will  not  convene  general  courts-martial." 

er  this  order,  which  was  applied  mainly  to  the  commands  designated  in  the  late 

war  as     districts,"  it  was  held  by  the  Judge  Advocate-General  as  follows:  That  the 

at  a  district  command  was  composed  not  of  regiments,  but  of  detachments 

a  See  16  Opin.  Att.  Gen.,  109. 

Ait£n2W*^™Pffe&ni  to  a  80mewhat  similar  effect,  of  the  Attorney-General  of 
t  "f  }  \  V  V  J  P*^'  106)'  in  which  H  ia  also  held  that  where  tbe  record  of  the 
Jh«  In  H°  «.  i  ft  th-at  thec°nvening  officer  was  the  "accuser  or  prosecutor"  of 
le  accused,  the  latter  in  applying  to  the  Secretary  of  War  to  have  the  proceedings 
Flounced  invalid  on  this  ground,  may  establish  the  facts  by  the  production  of  affi- 
davits setting  forth  th«  circumstances  of  the  case  and  the  action  of  the  commander. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  489 

1301.  General  courts-martial  may  consist  of  any  number 
of  officers  from  five  to  thirteen,  inclusive ;  but  they  shall 
not  consist  of  less  than  thirteen  when  that  number  can  be 
convened  without  manifest  injury  to  the  service.1  Seventy- 
fifth  Article  of  War. 

3302.  When  the  requisite  number  of  officers  to  form  a 
general  court-martial  is  not  present  in  any  post  or  detach- 
ment, the  commanding  officer  shall,  in  cases  which  require 
the  cognizance  of  such  a  court,  report  to  the  commanding 
officer  of  the  department,  who  shall,  thereupon,  order  a 
court  to  be  assembled  at  the  nearest  post  or  department  at 
which  there  may  be  such  a  requisite  number  of  officers,  and 
shall  order  the  party  accused,  with  necessary  witnesses,  to 
be  transported  to  the  place  where  the  said  court  shall  be 
assembled.  Seventy-sixth  Article  of  War. 

merely  (which,  however,  in  the  number  of  troops,  were  equal  to  or  exceeded  two  reg- 
iments), did  not  preclude  its  being  designated  as  a  "separate  brigade,"  and  that 
when  so  designated,  its  commander  had  the  same  authority  to  convene  general  courts- 
martial  as  he  would  have  if  the  command  had  the  regular  statutory  brigade  organi- 
zation. Thatthough  a  district  command  embraced  a  force  considerably  greater  than 
that  of  a  brigade  as  commonly  constituted,  yet  if  not  designated  by  the  proper  author- 
ity as  a  "separate  brigade,  its  commander  would  be  without  authority  to  convene 
general  courts-martial,  unless,  indeed,  his  command  constituted  a  separate  "army" 
in  the  sense  of  the  sixty-fifth  (now  seventy-second)  article.  That  it  was  not  abso- 
lutely necessary,  to  give  validity  to  the  proceedings  or  sentence  of  a  general  court- 
martial  convened  by  the  commander  of  a  separate  brigade,  that  the  command  should 
be  described  as  a  separate  brigade  in  the  caption  or  superscription  of  the  order  con- 
vening the  court  and  prefixed  to  the  record,  or  even  that  a  copy  of  the  order  desig- 
nating the  command  as  a  separate  brigade  should  accompany  the  proceedings.  As 
to  the  latter  feature,  the  order  of  1864  is  viewed  as  directory  merely.  And  though 
not  to  accompany  the  record  with  a  copy  of  the  order  thus  constituting  the  command 
would  be  a  serious  irregularity,  as  would  be  also — though  a  less  serious  one — the 
omission  of  the  proper  formal  description  of  the  command  from  the  convening  order, 
vet  if  the  command  had  actually  been  duly  designated,  and  in  fact  was,  a  separate 
brigade,  and  this  fact  existed  of  record  and  could  be  verified  from  the  official  records 
of  the  department  or  army,  the  omission  of  either  of  these  particulars,  though  a 
culpable  and  embarrassing  neglect  on  the  part  of  the  court  or  judge-advocate,  would 
not,  per  se,  invalidate  the  proceedings  or  sentence.  (Dig.  Opin.  J.  A.  G.,  85,  par.  3.) 

Held  (January,  1866)  that  until  the  status  belli  had  been  formally  declared  to  be 
terminated  by  the  President  or  Congress,  such  status  must  be  held  to  be  subsisting; 
and  that,  till  such  declaration,  the  authority  vested  by  the  act  of  December  24, 1861, 
chapter  3  (now  article  73),  in  commanders  of  divisions  and  separate  brigades  might 
lawfully  continue  to  be  exercised.  (Ibid.,  86,  par.  4.) 

•This  section  is  merely  directory  to  the  officer  appointing  the  court,  and  his  deci- 
sion as  to  the  number  which  can  be  convened  without  manifest  injury  to  the  service, 
being  a  matter  submitted  to  his  sound  discretion,  must  be  conclusive.  Martin  v. 
Mott,  12  Wheat.,  19,  35;  Mullan  v.  U.  S.,  140  U.  S.,  240.  The  limitation  with  refer- 
ence both  to  the  numbers  and  rank  of  the  members  of  a  general  court-martial  is  dis- 
cretionary with  the  appointing  power.  Mullan  v.  U.  S.,  23  C.  Cls.  R.,  34.  Dynes  v. 
Hoover,  20  How.,  81. 

Under  this  article  all  officers  of  the  active  list  of  the  Army  are  eligible  to  be  de- 
tailed as  members  of  general  courts-martial.  Chaplains,  however,  are  not  so  detailed 
in  practice.  Retired  officers,  in  view  of  sections  1259,  1260,  Revised  Statutes,  can 
not  legally  be  assigned  to  court-martial  duty.  (Dig.  Opin.  J.  A.  Gen.,  87,par.  1.) 

But  only  officers  can  be  so  detailed.  Courts-martial  composed  in  whole  or  in  part 
of  enlisted  men  are  unknown  to  our  law.  So  an  "  acting  assistant  surgeon, ' '  being  a 
civilian,  is  not  qualified  to  sit  on  a  court-martial.  Though  any  officer  may  legally 
be  detailed,  it  is  desirable  that  no  officer  should  be  selected  who,  from  having  pre- 
ferred the  charges  or  other  known  reason,  may  be  presumed  to  be  biased  or  inter- 
ested in  the  case.  (Ibid.,  par.  2.) 

It  is  not  essential  to  the  validity  of  the  proceedings  that  the  order  convening  a 
general  court-martial  of  less  than  thirteen  members  should  state  that  "no  other  offi- 
cers" or  "no  greater  number  "  "than  those  named  can  be  assembled  without  mani- 
fest injury  to  the  service."  Attorney -General  Wirt  (1  Opins.,  296)  did  not  hold  such 
a  statement  to  bo  essential,  but  simply  expressed  the  opinion  that  the  President, 
before  confirming  a  certain  death  sentence,  adjudged  by  a  court  of  less  than  thirteen 
members,  would  properly  satisfy  himself  that  a  court  of  the  full  number  could  not 
have  been  convened  .without  prejudice  to  the  service.  It  was  held  at  an  early  period 
by  the  United  States  Supreme  Court  that  it  was  for  the  convening  authority  to 
determine  as  to  what  number  of  officers  could  be  detailed  without  manfest  injury  to 
the  service,  and  that  his  decision  on  the  subject  would  be  conclusive,  (a)  (Ibid.,  88, 
par.  8.) 

a  Martin  v.  Mott,  12  Wheaton,  34-37  (1827). 


490  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

Regular   offi-     1303.  Officers  of  the  Begular  Army  shall  not  be  compe- 

cers  not  to  sit  on  -,  •>• 

courts  to  try  offi-  tent  to  sit  on  courts-martial  to  try  the  omcers  or  soldiers 


of  other  forces,  except  as  provided  in  Article  78.1     Seventy- 

77  Art.  war.    ^^^  Article  of  War. 

officers  of  ma-  1304.  Officers  of  the  Marine  Corps,  detached  for  service 
uiar8  Army  nfJ£  with  the  Army  by  order  of  the  President,  may  be  associated 
courts.  with  officers  of  the  Regular  Army  on  courts-martial  for  the 


41.  trial  of  offenders  belonging  to  the  Eeguiar  Army,  or  to 
7178  Art.  war.    forces  of  the  Marine  Corps  so  detached  ;  and  in  such  cases 
the  orders  of  the  senior  officer  of  either  corps,  who  may  be 
present  and  duly  authorized,  shall  be  obeyed.      Seventy- 
eighth  Article  of  War. 

JURISDICTION. 


cam 


1305-  Officers  shall  be  tried  only  by  general  courts-martial  ; 
courts-martial.    aiic[  no  officer  shall,  when  it  can  be  avoided,  be  tried  by  offi- 
cers inferior  to  him  in  rank.2     Seventy-ninth  Article  of  War. 
.Retainers    to     1306.  All  retainers  to  the  camp,  and  all  persons  serving 
es  Art.  w»r.    with  the  armies  of  the  United  States  in  the  field,  though 
not  enlisted  soldiers,  are  to  be  subject  to  orders,  according 
to  the  rules  and  discipline  of  war.  Sixty-third  Article  of  War. 

1  Although  officers  and  soldiers  of  volunteers,  not  being  militia,  are  as  much  a  part 
of  the  Army  of  the  United  States  as  are  regular  officers,  yet,  in  view  of  the  terms  of 
this  article,  an  officer  of  the  Regular  Army,  so  called,  would  not  be  eligible  for  detail 
as  a  member  of  a  court-martial  convened  for  the  trial  of  volunteer  officers  or  soldiers, 
nor,  when  duly  detailed  as  a  member  of  a  court-martial,  would  he  be  competent  to 
take  part  in  the  trial  of  a  volunteer  by  such  court.     (Ibid.,  89.) 

The  volunteer  force  during  the  late  war  was  not  a  part  of  the  militia,  but  of  the 
Army  of  the  United  States.  Though  assimilated  to  the  militia  in  some  respects,  as, 
for  example,  in  the  mode  of  original  appointment  of  regimental  and  company  officers, 
it  was  as  distinct  in  law  from  the  militia  as  was  the  so-called  "regular"  contingent 
of  the  Army,  (a)  Volunteer  officers,  once  mustered  into  the  service  of  the  United 
States,  and  while  they  remained  in  that  service,  did  not  differ  substantially  from 
regular  officers  in  their  status,  rights,  or  otherwise.  Their  tenure  of  office  was  indeed 
briefer;  this,  however,  was  not  a  material  legal  distinction,  since  the  term  of  regular 
officers  was  also  in  some  cases  limited  by  statute  to  a  definite  period,  as  the  dura- 
tion of  the  existing  war.  (Ibid.,  p.  745,  par.  1.  ) 

2  Courts-martial  (though,  within  their  scope  and  province,  authoritative  and  inde- 
pendent tribunals)  are  bodies  of  exceptional  and  restricted  powers  and  jurisdiction  ; 
their  cognizance  being  confined  to  the  distinctive  classes  of  offenses  recognized  by 
the  military  code,  (b)    Their  jurisdiction  is  criminal,  their  functions  being  to  assign 
(in  proper  cases)  punishment;  they  have  no  authority  to  adjudge  damages  for  per- 
sonal injuries  or  private  wrongs,  (c)     (Dig.  Opin.  J.  A.  Gen.,  321,  par.  1.) 

The  court-martial  having  jurisdiction  of  the  person  of  the  accused  and  of  the  offense 
charged,  and  having  acted  within  the  scope  of  its  lawful  power,  its  decision  and 
sentence  can  not  be  reviewed  or  set  aside  by  the  civil  courts  by  writ  of  habeas  corpus 
or  otherwise.  Johnson  v.  Sayre,  158  U.  S.,  109,  118  ;  Dynes  v.  Hoover,  20  How.,  65,  82  ; 
Exparte  Reed,  ;00  U  S.,  13;  Exparte  Mason,  105  U.  S.,  696;  Smith  v.  Whitney,  116 
U.  S.,  167,  177-179. 

While  it  will  in  general  be  more  for  the  interest  and  convenience  of  the  service 
to  bring  an  accused  officer  or  soldier  to  trial  near  the  locality  of  his  oftense,  he  may 
with  equal  legality  be  tried  by  a  court  convened  in  any  other  part  of  the  United 
States.  (Ibid.,  322,  par.  2.) 

The  jurisdiction  over  persons  in  the  military  service  covers  all  military  offenses 

a  As  illustrating  the  distinction  made  in  section  8,  Article  I,  of  the  Constitution, 
between  the  Army  and  militia,  and  indicating  the  status  of  the  volunteers  during 
the  late  war  as  a  part  of  the  former,  see  Kerr  v.  Jones,  19  Ind.,  351  ;  Wantlan  v. 
W  hite,  ibid.,  471  ;  In  the  matter  of  Kimball,  9  Law  Rep.,  503  ;  Burroughs  v.  Peyton,  16 
Grat.,  483,  485. 

b  Ex  parte  Wilkins,  3  Peters,  193  ;  Barrett  v.  Crane,  16  Verm.,  246  ;  Brooks  v.  Adams, 
11  Pick.,  441  ;  Brooks  v.  Davis,  17  ibid.,  148;  Brooks  v.  Daniels,  22  ibid.,  498  ,  Washburn 
v.  Phillip,  2  Met.,  296;  Smith  v.  Shaw,  12  Johns.  ,257;  Mills  v.  Martin.  19  ibid.,  7;  In 
matter  of  Wright,  34  How.  Pr.,  221  ;  Duffield  v.  Smith,  3  Sergt.  &  Rawle,  590  ;  Bell  v. 
Tooley,  12  Iredell,605;  State  v.  Stevens,  2  McCord.32;  Miller  v.  Seare,2  W.  Black.. 
1141;  6  Opm.Att.  Gen.,  425.  "A  court-martial  is  a  court  of  limited  and  special 
jurisdiction.  It  is  called  into  existence  by  force  of  express  statute  law,  for  a  special 
purpose,  and  to  perform  a  particular  duty;  and  when  the  object  of  its  creation  is 
accomplished  it  ceases  to  exist.  *  *  *  If,  in  its  proceedings  or  sentence,  it  tran- 
scends the  limit  of  its  jurisdiction,  the  members  of  the  court  and  the  officer  who 
executes  its  sentence  are  tresspassers,  and  as  such  are  answerable  to  the  party 
injured,  in  damages,  in  the  courts."  3  Greenl  Ev  sec  470 

cSee  2  Greenl.  Ev.,  sec.  471,  476;  United  States  v.  Clark,  6  Otto,  40;  Warden  v. 
Bailey,  4  Taunt..  78. 


THE   MILITARY   LAWS    OF    THE   UNITED    STATES.  491 

1307.  The  officers  and  soldiers  of  any  troops,  whether 
militia  or  others,  mustered  and  in  pay  of  the  United  States, 
shall,  at  all  times  and  in  all  places,  be  governed  by  the 
articles  of  war,  and  shall  be  subject  to  be  tried  by  courts- 
martial.1  Sixty-fourth  Article  of  War. 

committed  by  them,  whether  within  or  beyond  the  territorial  jurisdiction  of  the 
United  States.  Military  offenses  are  not  territorial.  (Manual  for  Courts-Martial, 
p.  12.) 

The  jurisdiction  of  courts-martial  is  non-territorial.  In  a  case  of  an  officer  who 
exhibited  himself  in  a  drunken  condition  at  a  public  ball  in  Mexico,  held  that  his 
offense  was  cognizable  by  a  court-martial  of  the  United  States,  subsequently  con- 
vened in  Texas  by  the  department  commander.  This  for  the  reason  that  the  mili- 
tary jurisdiction  does  not  recognize  territoriality  as  an  essential  element  of  military 
offenses,  but  extends  to  the  same  wherever  committed,  a  principle  which  is  amply 
confirmed  by  the  comprehensive  provision  of  the  Sixty-fourth  Article  of  War.  (Ibid., 
par.  20. 

In  order  to  become  amenable  to  the  military  jurisdiction,  an  officer  or  soldier  must 
have  been  legally  and  fully  admitted  into  the  military  service  of  the  United  States. 
Thus  held  that  an  officer  01  State  volunteers  appointed  by  a  governor  of  a  State,  but 
not  yet  mustered  into  the  United  States  service,  was  not  amenable  to  the  jurisdic- 
tion of  a  court-martial  of  the  United  States  for  an  offense  committed  while  engaged 
in  recruiting  service  under  the  authority  of  the  governor.  So  held  that  the  making 
of  fraudulent  representations  in  the  course  of  the  preliminaries  to  an  enlistment — 
as  in  the  "declaration  of  the  recruit" — and  before  the  enlistment  was  legally  com- 
plete and  the  soldier  thus  fully  in  the  United  States  service,  did  not  constitute  an 
offense  within  the  cognizance  of  a  court-martial.  (Dig.  J.  A.  Gen.,  323,  par.  4.) 

An  officer  or  soldier  (except  as  otherwise  provided  in  the  sixtieth  article)  ceases 
to  be  amenable  to  the  military  jurisdiction  for  offenses  committed  while  in  the  mili- 
tory  service,  after  he  has  been  separated  therefrom  by  resignation,  dismissal,  being 
dropped  for  desertion,  muster  out,  discharge,  etc.,  and  has  thus  become  a  civilian,  (a) 
The  old  English  precedent  of  Sackville's  case  (6)  (which  appears,  indeed,  to  stand 
alone  even  in  England)  has  not  been  followed  in  this  country  or  recognized  in  our 
laws.  (Ibid.,  par.  5.) 

Whenever  the  law  permits  the  civil  courts  of  the  United  States  to  review  the 
proceedings  of  courts-martial,  such  review  must  be  confined  to  the  question  of 
jurisdiction  alone.  If  the  court-martial  is  found  to  have  acted  with  jurisdiction,  the 
civil  court  can  not  and  will  not  go  into  the  case  further.  Wales  v.  Whitney,  114  U.  S., 
564 ;  Dynes  v.  Hoover,  20  How.,  82. 

The  following  classes  of  persons  are,  by  statute,  made  subject  to  military  law,  and 
are  therefore  amenable  to  trial  by  general  court-martial: 

(1)  Members  of  the  military  establishment.    Section  1094,  Eevised  Statutes. 

(2)  Persons  admitted  to  the  Soldiers'  Home  at  Washington,  D.  C.     Section  4824, 
Revised  Statutes. 

(3)  Inmates  of  the  National  Home  for  Disabled  Volunteers.     Section  4835,  Eevised 
Statutes. 

(4)  Persons  guilty  of  contempt  of  court.    Eighty-sixth  Article  of  War. 

(5)  Post  traders  (in  time  of  war  only ) .    Section  3,  act  of  J  uly  26, 1876  (19  Stat.  L.  100) . 

(6)  The  Marine  Corps,  when  serving  with  the  Army.     Section  1621,  Eevised 
Statutes. 

(7)  The  militia,   when  called  into  active  service.      Sections  1642-1644,  Eevised 
Statutes.     Sixty-fourth  Article  of  War. 

(8)  Persons  relieving  or  harboring  the  enemy.    Forty -fifth  Article  of  War. 

(9)  Persons  giving  intelligence  to  the  enemy.    Forty-sixth  Article  of  War. 

(10)  Retainers  to  the  camp,  and  all  persons  serving  with  armies  in  the  field .    Sixty- 
third  Article  of  War. 

(11)  Spies.    Section  1343,  Eevised  Statutes.    See,  also,  in  connection  with  the  sub- 
ject of  jurisdiction,  MANUAL  FOR  COURTS-MARTIAL,  pp.  11-14. 

1  A  discharge  of  a  soldier,  when  subject  to  trial  and  punishment  for  a  military 
offense,  is  a  formal  waiver  and  abandonment  by  the  United  States  of  jurisdiction 
over  him.  Nor  does  a  soldier,  after  having  once  been  discharged,  as  where  he  has 
been  dishonorably  discharged  by  sentence,  remain  liable  to  the  military  jurisdiction 
for  desertion  or  any  other  military  offense  committed  before  discharge,  by  reason  of 
being  still  held  in  military  custody  as  a  prisoner  in  confinement  under  the  same  sen- 
tence; for  he  is  then  held  not  as  a  soldier,  but  as  a  civilian  convict. 

Nor  can  a  person  who,  by  reason  of  acceptance  of  resignation,  dismissal,  discharge, 
etc.,  has  become  wholly  detached  from  the  military  service,  be  made  liable  to  trial 
by  court-martial,  for  offenses  committed  while  in  the  service,  on  the  ground  that 
such  offenses  were  not  discovered  till  after  he  had  left  the  Army. 

The  returning  by  a  dismissed,  etc.,  officer,  to  the  service  under  a  new  commission 
does  not  revive  a" jurisdiction  for  offenses  committed  while  he  was  in  the  service, 
which  had  lapsed  upon  his  being  separated  from  it. 

It  is  to  be  understood  that  the  general  rule  of  the  nonamenability  to  military  trial 
of  officers  and  soldiers,  after  discharge,  dismissal,  etc.,  is  subject  to  a  specific  stat- 
utory exception,  viz,  that  provided  for  in  the  concluding  provision  of  the  sixtieth 
article.  (Dig.  Opin.  J.  A.  Gen. ,323,  par.  5.) 

Where  a  soldier  in  the  Army  of  the  United  States  was  arrested  for  a  crime,  and 
his  term  of  enlistment  expired  before  his  trial  and  conviction  by  court-martial, 
held  that  the  jurisdiction  of  the  court-martial  having  once  attached  by  arrest,  it 

a  See  this  principle  repeated  and  illustrated  in  G.  C.  M.  0. 4, 16,  War  Department, 
1871;  Gr.O.  90,  Department  of  Pennsylvania,  1865;  G.  O.  43,  Middle  Department,  1865 ; 
G.  0. 22,  Department  of  the  Missouri,  1866. 

6  Note  the  counter  dictum  of  Lord  Mansfield,  in  Parker  v.  Clive,  4  Burrow,  2419 
(dated  in  1779),  that  officers  of  the  army,  "after  resigning  their  commissions,  cease  to 
be  objects  of  military  jurisdiction." 


492  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

c<mrttempt8   °f     1308<  Tne  court-martial  ma7  punish,  at  discretion,  any 
86  Art.  War.    person  who  uses  any  menacing  words,  signs,  or  gestures, 

retained  jurisdiction  for  all  the  purposes  of  trial,  judgment,  and  execution.  (Barrett 
v.  Hopkins,  7  Fed.  Rep.,  312.) 

A  soldier,  however,  provided  he  has  not  been  in  fact  discharged,  may  be  brought 
to  trial  by  court-martial  after  the  term  of  service  for  which  he  enlisted  has  expired, 
provided,  before  such  expiration,  proceedings  with  a  view  to  trial  have  been  duly 
commenced  against  him  by  arrest  or  service  of  formal  charges,  (a)  By  such  arrest  or 
service  the  military  jurisdiction  attaches,  and,  once  attached,  trial  by  court-martial, 
and  punishment,  upon  conviction,  may  legally  ensue,  though  the  soldier's  term  of 
enlistment  may  in  fact  expire  before  the  trial  be  entered  upon.  In  the  leading  case 
on  this  point,  of  aseamaninthe  Navy  (In re  Walker,  3  American  Jurist,  281)  (&),  the 
supreme  court  of  Massachusetts  held  (January  25, 1830),  as  follows :  "In  this  case  the 
petitioner  was  arrested,  or  put  in  confinement,  and  charges  were  preferred  against 
him  to  the  Secretary  of  the  Navy  before  the  expiration  of  the  time  of  his  enlistment; 
and  this  was  clearly  a  sufficient  commencement  of  the  prosecution  to  authorize  a 
court-martial  to  proceed  to  trial  and  sentence,  notwithstanding  the  time  of  service 
had  expired  before  the  court-martial  had  been  convened."  So  held,  in  a  case  of  a 
soldier  of  the  Regular  Army,  arrested  on  the  day  before  the  expiration  of  his  term  of 
enlistment,  with  a  view  to  a  trial  for  a  military  offense  by  court-martial,  that  the 
jurisdiction  of  the  court  had  duly  attached,  and  that  his  trial  might  legally  be  pro- 
ceeded with.  And  similarly  held  in  repeated  cases  of  soldiers  and  officers  of  regular 
and  volunteer  regiments. 

And  held  that  a  soldier  could  not  be  made  amenable  to  trial  for  an  offense  com- 
mitted after  the  expiration  of  his  enlistment,  by  the  mere  fact  that  at  the  time  he 
was  duly  held  in  arrest  awaiting  trial  for  an  offense  committed  before  the  expiration 
of  his  term;  the  jurisdiction  which  had  attached  for  the  purposes  of  the  trial  and 
punishment  of  this  offense  not  being  capable  of  being  extended  to  include  the  case 
of  an  offense  committed  by  the  party  under  a  distinct  legal  status.  Of  course,  if, 
after  the  jurisdiction — by  arrest  or  service  of  charges — has  attached,  the  soldier  is 
discharged  from  the  service,  such  jurisdiction  wholly  ceases.  (Ibid.,  324,  par.  6.) 

Where  the  amenability  of  a  soldier  for  a  military  offense  had  been  finally  severed 
by  his  due  discharge  from  the  service,  held  that  it  did  not  revive  upon  his  re-enter- 
ing the  service  within  the  period  of  limitation.  (Ibid.,  331,  par.  18.) 

By  the  sixth  amendment  of  the  Constitution,  civilians  are  guaranteed  the  right 
of  trial  by  jury  "in  all  criminal  prosecutions."  Thus,  in  time  of  peace,  a  court- 
martial  can  not  assume  jurisdiction  of  an  offense  committed  by  a  civilian  without  a 
violation  of  the  Constitution.  It  is  only  under  the  exceptional  circumstances  of  a 
time  of  war  that  civilians  may,  in  certain  situations,  become  amenable  to  trial  by 
court-martial,  (c) 

A  civilian  brought  to  trial  before  a  court-martial  can  not,  by  a  plea  of  guilty  or 
other  form  of  legal  assent,  confer  jurisdiction  upon  the  court,  where  no  jurisdiction 
exists  in  law.  (rf)  (Dig.  Opiii.  J.  A.  Gen.,  325,  par.  7.) 

Any  statute  by  which  any  class  of  civilians  is  attempted  to  be  made  amenable  to 
trial  by  court-martial  for  offenses  committed  while  civilians  and  in  time  of  peace  is 
necessarily  unconstitutional. 

Section  1361,  Revised  Statutes,  applies  only  to  prisoners  in  confinement  at  the 
military  prison  at  Leaven  worth.  So,  in  a  case  of  a  prisoner,  who,  while  confined 
after  discharge  under  sentence,  at  the  prison  at  Alcatraz  Island,  was  brought  to  trial 
by  court-martial  for  an  escape  and  sentenced,  on  conviction,  to  an  additional  termot 
imprisonment,  held  that  the  second  trial — the  prisoner  being  then  a  civilian — was 
wholly  without  legal  authority  aud  the  sentence  of  no  effect,  (e)  (Ibid.,  327,  par.  9.) 

So,  where  a  prisoner  confined  at  the  Leavenworth  prison,  after  a  discharge  from 
the  service,  was  brought  to  trial  by  court-martial  for  an  offense  (desertion)  com- 
mitted not  during  his  confinement,  but  more  than  a  year  and  a  half  before  he  was 
received  at  the  prison  under  his  original  sentence,  held  that  section  1361,  Revised 
Statutes,  furnished  no  authority  for  such  trial,  and  that  the  court  was  therefore 
without  jurisdiction  and  the  sentence  void.  (Ibid.,  328,  par.  10.) 

To  give  a  court-martial  jurisdiction  of  the  person  of  an  officer  or  soldier  charged 
with  a  military  offense,  it  is  not  necessary  that  he  shall  have  been  subjected  to  any 
particular  form  of  arrest,  or  that  he  shall  have  been  arrested  at  all,  or  even  ordered 
to  attend  the  court.  Here,  as  before  a  civil  tribunal,  his  voluntary  appearance  and 
submission  for  trial  is  all  that  is  essential.  (Ibid.,  par.  11.) 

It  is  no  objection  to  the  assuming  by  a  court-martial  of  jurisdiction  of  a  military 
offense  committed  by  an  officer  or  soldier  that  he  may  be  amenable  to  trial,  or  may 
actually  have  been  tried  and  convicted,  by  a  criminal  court  of  the  State,  etc.,  for  a 
criminal  offense  involved  in  his  act.  Thus  a  soldier  may  be  tried  for  a  violation  of 
article  21,  in  striking  or  doing  other  violence  to  a  superior  officer,  after  having  been 
convicted  by  a  civil  tribunal  for  the  criminal  assault  and  battery.  So  an  officer  or 
soldier  may  be  brought  to  trial  under  a  charge  of  "conduct  to  the  prejudice  of  good 
order  and  military  discipline  "  for  the  military  offense  (if  any)  involved  in  a  horni- 

oSee  G.  C.  M.  0. 16,  War  Department,  1871. 

o  And  see  Judge  Story's  charge  to  the  jury  in  TT.  S.  v.  Travers,  2  Wheeler  Cr.  C., 
509 ;  In  the  matter  of  Dew,  25  L.  R.,  540 ;  In  re  Bird,  2  Sawyer,  33. 

c  bee,  in  support  of  this  view,  Ex  parte  Milligan,  4  Wallace,  121-123 ;  Jones  v. 
Seward,  40  Barb.,  563;  In  matter  of  Martin,  45  ibid.,  145;  Smith  v.  Shaw,  12  Johns., 
257,  265;  In  matter  of  Stacy,  10  ibid.,  33L;  Mills  v.  Martin,  19  ibid.,  22;  Johnson  v. 
Jones,  44  Ills.,  142,  155;  Griffin  v.  Wilcox,  21  Ind.,  386;  In  re  Kemp,  16  Wis.,  359;  Ex 
parte  McRoberts,  16  Iowa,  605;  Antrim's  case,  5  Philad.,  288;  3  Opin.  Att.  Gen.,  690; 
13  ibid.,  63. 

d  Compare  Peoples.  Campbell,  4  Parker,  386;  Shoemaker  v.  Nesbit,  2  Rawle,  201; 
Moore  v.  Houston,  3  Sergt.  &  Rawie,  190;  Duffield  v.  Smith,  ibid.,  599;  also  One  hun- 
dred and  third  article. 

e  This  view  is  approved,  and  the  last  sentence  of  the  prisoner  declared  inoperative 
by  the  Secretary  of  War,  in  G.  C.  M.  O.  4,  War  Department,  1871. 


THE    MILITARY    LAWS    OF    THE   UNITED    STATES.  493 

in  its  presence,  or  who  disturbs  its  proceedings  by  any  riot 
or  disorder.1  Eighty-sixth  Article  of  War. 

cide  or  a  larceny,  of  "which,  as  a  civil  offense,  he  has  been  acquitted  or  convicted  by 
a  criminal  court.  And  the  reverse  is  also  law,  viz,  that  the  civil  court  may  legally 
take  cognizance  of  the  criminal  offense  involved,.without  regard  to  the  fact  that  the 
party  has  been  subjected  to  a  trial  and  conviction  by  court-martial  for  his  breach  of 
military  law  or  discipline.  In  such  instances  the  act  committed  is  an  offense  against 
the  two  jurisdictions  and  may  legally  subject  the  offender  to  be  tried  and  punished 
under  both,  (a)  (Dig.  Opin.  J.  A.  G.,  328,  par.  12.) 

In  cases  of  double  amenability,  while,  in  view  of  the  subordination  of  the  military 
to  the  civil  power,  the  civil  jurisdiction  is  entitled  to  the  preference,  yet  in  general 
that  jurisdiction  which  is  first  fully  attached  is  ordinarily  properly  allowed  to  have 
the  precedence  in  its  exercise  over  the  other.  See  Ex  parte  Mcltoberts,  16  Iowa, 
606;  6  Opin.  Att  Gen.,  423;  G.  O.  25,  Headquarters  of  Army,  1840. 

It  can  not  affect  the  authority  of  a  court-martial  to  take  cognizance  of  the  military 
offense  involved  in  an  injury  committed  by  a  soldier  against  an  officer  that  before 
the  trial  the  latter  has  resigned  or  been  otherwise  separated  from  the  Army.  (Ibid., 
329,  par.  13.) 

Whether  a  soldier  may  legally  be  held  amenable  to  trial  by  court-martial  for  an 
offense  committed  by  him  while  on  furlough  will  depend  upon  the  nature  of  the 
offense  and  the  circumstances  of  his  situation.  In  general,  indeed,  where  he  is  thus 
absent  at  his  home  or  at  such  a  distance  from  bis  station  and  from  troops  that  his 
offenses  will  not  directly  prejudice  military  discipline,  (b)  he  will  not  render  himself 
amenable  to  the  military  jurisdiction  unless,  indeed,  hecommitsa  desertion.  (Ibid., 
par.  14.)  See  MANUAL  FOR  COURTS-MARTIAL,  p.  16,  par.  7. 

The  discharge  of  a  soldier  not  taking  effect  till  delivery,  actual  or  constructive, 
held  that  a  soldier  who  committed  a  military  offense  on  the  day  on  which  he  was  to 
be  dishonorably  discharged  under  sentence  but  before  the  discharge  was  delivered 
to  him  (or  to  the  officer  in  charge  of  the  prison  at  which  he  was  also  to  be  confined 
under  the  same  sentence)  was  amenable  to  the  military  jurisdiction  for  the  trial  and 
punishment  of  such  offense  as  being  still  in  the  military  service.  (Ibid.,  330,  par.  16.) 

Held  that  when  the  volunteer  army  to  which  a  soldier  belonged  was,  at  the  end  of 
the  late  war,  disbanded,  soldiers  absent  in  desertion  ceased  to  be  subject  to  military 
jurisdiction  and  became  civilians,  but  that  their  last  military  record  was  that  of 
deserters,  and  that,  as  to  them,  the  disbandment  of  the  army  did  not  operate  as  a  dis- 
charge from  the  service.  (Ibid.,  par.  17.) 

In  March,  1870,  the  president  of  the  "National  Home  for  Disabled  Volunteer 
Soldiers  "  (a  civilian)  convened  at  the  Home  a  court-martial  composed  of  eight  in- 
mates of  the  same  (all  civilians,  but  designated  by  their  former  rank  in  the  volun- 
teer service  as  "  surgeon,"  "  captain,"  "  sergeant,"  and  "  private  ")  for  the  trial  on 
charges  of  desertion  and  other  offenses  of  another  (civilian)  inmate.  The  court  tried 
the  accused,  convicted  him,  and  sentenced  him  to  a  term  of  imprisonment.  The 
proceedings  and  sentence  were  approved  by  the  convening  authority,  who  there- 
upon applied  to  the  Secretary  of  War  for  an  order  designating  a  military  prison  for 
the  confinement  of  the  party  in  execution  of  his  sentence.  Held  (upon  a  reference 
of  the  case  for  opinion  by  the  Secretary  of  War)  that  the  proceedings  were  unprece- 
dented, unauthorized  abinitio,  and  void  as  a  whole  and  in  detail;  that  the  provi- 
sion in  the  act  establishing  the  Home  that  the  inmates  should  be  "  subject  to  the 
Rules  and  Articles  of  War  in  the  same  manner  as  if  they  were  in  the  Army,"  even  if  it 
could  be  regarded  as  constitutional,  conveyed  no  authority  for  such  a  court  as  that 
constituted  and  composed  in  this  case;  and  that  the  sentence  adjudged  by  the  same 
could  not  legally  be  executed  in  the  manner  proposed  or  otherwise,  (c)  (Ibid.,  par.  15.) 

Where  the  amenability  of  a  soldier  for  a  military  offense  had  been  finally  severed 
by  his  due  discharge  from  the  service,  held  that  it  did  not  revive  upon  his  reenter- 
ing  the  service  within  the  period  of  limitation.  (Dig.  Opin.  J.  A.  Gen.,  331,  par.  18.) 

Held  that  an  officer  could  not,  by  procuring  himself  to  be,  or  consenting  to  being-, 
placed  under  a  conservator  as  a  habitual  drunkard,  in  the  form  prescribed  by  the 
local  law,  withdraw  himself  from  the  military  jurisdiction;  but  that  ho  remained 
amenable  to  trial  and  punishment  for  offenses  committed  prior  to  such  proceeding 
and  within  the  period  of  limitation.  (Ibid.,  par.  19.) 

Held  that  an  acquittal  of  a  soldier  on  an  indictment  for  larceny,  by  a  civil  court, 
was  no  bar  to  his  trial  by  court-martial  for  the  same  act,  charged  under  the  sixty- 
second  article  of  war.  And  so  held,  in  a  case  of  an  acquittal  by  a  civil  court  of  an 
officer  who  had  committed  a  homicide  of  another  officer  in  Ihe  course  of  an  alterca- 
tion in  the  presence  of  enlisted  men  at  a  military  post.  (Ibid.,  par.  21.) 

!The  power  of  a  court-martial  to  punish,  under  this  article,  being  confined  prac- 
tically to  acts  done  in  its  immediate  presence,  such  a  court  can  have  no  authority  to 

a  That  an  officer  may  be  amenable  to  the  civil  and  the  military  jurisdiction  at  the 
same  time  for  the  same  act,  see  cases  of  Assistant  Surgeon  Steiner  and  Captain  Howe 
(6  Opin.  Att.  Gen.,  413,  506).  In  the  former  case  it  is  held  that  the  "conviction  or 
acquittal  of  an  officer  by  the  civil  authorities,  of  the  offense  against  the  general  law, 
does  not  discharge  him  from  responsibility  for  the  military  offense  involved  in  the 
same  facts."  In  the  latter  case  it  is  observed:  "An  officer  may  bo  tried  by  court- 
martial  for  the  military  relation  of  an  act  after  having  been  tried  by  the  civil  author- 
ities for  the  civil  relations  of  the  same  act."  And  see3Opins.,  749,  and  compare 
Moore  v  Illinois,  14  Howard,  19-20.  In  a  case  published  in  G.  C.  M.  0. 20,  Head- 
quarters of  Army,  1869,  an  officer  was  charged  with  and  convicted  of  "  conduct  to 
the  prejudice  of  good  order  and  [military  discipline  "  for  the  killing  of  a  soldier,  for 
which  as  "manslaughter  "  he  had  previously  been  acquitted  by  a  civil  court.  And 
see  cases  in  G.  0. 78,  Department  of  the  East,  1869 ;  G.  C.  M.  0. 50,  Department  of  the 
Missouri,  1871. 

b  Compare  Ex  parto  McRoberts,  16  Iowa,  600. 

c  It  is  inaccurately  stated  in  the  report  of  the  case  of  Renner  V.Bennett,  21  Ohio  St., 
434  (December,  1871).  that  no  inmate  of  the  National  Home  had  ever  been  subjected 
to  a  trial  by  court-martial.  The  instance  referred  to  in  the  text,  however,  is  the  only 
one  known  of  such  a  trial. 


494      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


JUDGE-ADVOCATES. 

judge- advo-     1309.  Officers  who  may  appoint  a  court-martial  shall  be 
ca7Tirt.  war.    competent  to  appoint  a  judge-advocate  for   the   same.1 
Seventy-fourth  Article  of  War. 

punish,  as  for  a  contempt,  a  neglect  by  an  officer  or  soldier  to  attend  as  a  witness  in 
compliance  with  a  summons,  (a)  (Dig.  Opin.  J.  A.  Gen.,  98,  par.  1.) 

A  court-martial  has  none  of  the  common-law  power  to  punish  for  contempt  vested 
in  the  ordinary  courts  of  justice,  but  only  such  authority  as  is  given  it  by  this  arti- 
cle. Thus  held  that  a  court  martial  was  not  authorized  to  punish,  as  for  a  contempt, 
under  this  article  (or  otherwise),  a  civilian  witness  duly  summoned  and  appearing 
before  it,  but,  when  put  on  the  stand,  declining  (without  disorder)  to  testify.  (Ibid., 
99,  par.  2.) 

The  authority  of  a  court-martial  to  punish  as  fora  contempt  being  con  fined  by 
the  code  (article  86)  to  cases  of  acts  of  menace  or  disorder  committed  in  its  presence, 
such  a  court  would  not  be  empowered  to  punish,  as  being  in  contempt,  .1  witness 
appearing  before  it  whose  attendance  it  had  been  necessary  to  compel  by  process  of 
attachment.  (Ibid.,  759,  par.  33.) 

"Where  a  contempt  within  the  description  of  this  article  has  been  committed,  and 
the  court  deems  it  proper  that  the  oifender  shall  be  punished,  the  proper  course  is 
to  suspend  the  regular  business,  and  after,  giving  the  party  an  opportunity  to  be 
heard,  explain,  etc.,  (b)  to  proceed— if  the  explanation  is  insufficient— to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The  action  taken  is 
properly  summary,  a  formal  trial  not  being  called  for.  Close  confinement  in  quar- 
ters or  in  the  guardhouse  during  the  trial  of  the  pending  case,  or  forfeiture  of  a 
reasonable  amount  of  pay,  has  been  the  more  usual  punishment.  Instead  of  pro- 
ceeding against  a  military  person  for  a  contempt  in  the  mode  contemplated  by  this 
article,  the  alternative  course  may  be  pursued  of  bringing  him  to  trial  before  a  new 
court  on  a  charge  for  a  disorder  under  article  62.  (c)  (Ibid.,  99,  par.  3.) 

For  other  statutes  conferring  jurisdiction  upon  courts-martial  to  try  and  punish 
crimes  and  criminal  offenses  see  the  3d,  5th,  6th,  7th,  8th,  9th,  13th,  14th,  15th,  16th, 
17th,  18th,  19th,  20th,  21st,  22d,  23d,  24th,  25th,  26th,  27th,  28th,  30th,  31st,  32d,  33d, 
34th,  35th,  36th,  37th,  38th,  39th,  40th,  41st,  42d,  43d,  44th,  45th,  46th,  47th,  48th,  49th, 
50th,  51st,  52d,  53d,  54th,  55th,  56th,  57th,  58th,  59th,  60th,  61st,  62d,  68th,  and  69th 
articles  of  war  and  section  1343  of  the  Revised  Statutes. 

1  Any  commissioned  officer  may  legally  be  appointed  j  udge-advocato  of  a  court- 
martial.  Thus  a  surgeon,  assistant  surgeon,  or  even  a  chaplain,  is  legally  eligible 
to  be  so  detailed.  (Dig-  Opin.  J.  A.  Gen.,  456,  par.  2.)  For  authoritative  instructions 
in  reference  to  the  performance  of  the  duties  of  a  judge-advocate  of  a  court-martial. 
See  MANUAL  FOR  COURTS-MARTIAL,  pp.  22-25. 

A  separate  judge-advocate  should  be  appointed  for  each  general  court-martial  con- 
vened by  adepartment  or  other  competent  commander.  The  same  officer  may,  indeed, 
be  selected  to  perform  the  duties  of  judge  advocate  as  often  as  may  be  deemed  desir- 
able by  the  commander,  but  he  should  be  detailed  anew  for  every  court-martial  on 
which  he  acts.  To  appoint  in  a  general  order  a  particular  officer  to  act  as  judge- 
advocate  for  all  the  courts  to  be  held  in  the  same  command  would  be  quite  irregular 
and  without  the  sanction  of  precedent.  w(Ibid.,  par.  3.) 

It  is  competent  for  the  commander  who  has  convened  a  court-martial  to  relieve  the 
judge-advocate  originally  detailed  for  it  and  substitute  another  in  his  place,  and  the 
second  may  in  the  same  manner  be  relieved  by  a  third,  etc.  The  relieving,  however, 
of  a  judge-advocate,  pending  a  trial,  must  in  general  embarrass  the  prosecution  of  a 
case,  and  should  not  be  resorted  to  if  it  can  well  be  avoided.  (Ibid.,  par.  4.) 

While  a  civilian  may  legally  be  appointed,  or  rather  employed,  as  judge -advocate 
of  a  court-martial,  such  an  employment  has,  for  the  past  fifty  years,  been  of  the 
rarest  occurrence  in  the  military  service,  (d)  Civil  judge-advocates  have  been  much 
more  frequently  employed  for  naval  than  for  military  courts-martial. (e)  (Ibid.,  457, 
par.  7.) 

An  absence  of  the  judge-advocate  from  the  court  during  the  trial  does  not  per  se 
affect  the  validity  of  the  proceedings,  but  is,  of  course,  to  be  avoided  it  possible. 
When  the  judge-advocate  is  obliged  to  temporarily  absent  himself,  the  court  should 
in  general  suspend  the  proceedings  for  the  time ;  or,  if  his  absence  is  to  be  prolonged, 
should  adjourn  for  a  certain  period.  (Ibid.,  460,  par.  18.) 

Should  the  judge  advocate  be  required  to  give  evidence  as  a  witness,  the  clerk  or 
reporter  of  the  court  may  go  on  to  record  his  testimony  while  on  the  stand ;  or,  if 
there  be  no  clerk  or  reporter,  he  may  record  his  own  testimony  as  that  of  any  other 
witness.  (Ibid.,  par.  19.) 

An  officer  can  not  in  general  fitly  or  becomingly  act  as  judge-advocate  in  a  case  in 

a  As  to  the  power  of  courts  of  inquiry  to  punish  for  contempt,  see  par.  1338,  infra, 
note  1. 

6  See  G.  C.  M.  0. 37,  Fourth  Military  District,  1868. 

c  Compare  Samuel,  634 ;  Simmons,  sec.  434.  The  latter  course  has  not  unfrequently 
been  adopted  in  our  practice. 

d  The  last  occasions  of  such  employment  are  believed  to  have  been  those  of  the 
trial  of  the  persons  charged  with  complicity  in  the  assassination  of  President  Lincoln, 
and  the  trial  of  Major  Haddock,  Provost-Marshal's  Department  (see  G.  C.  M.  O.  356 
and  565,  War  Department,  1865),  upon  which  Hon.  J.  A.  Bingham  and  Hon.  Roscoe 
Conkling  were  respectively  employed  as  judge-advocates. 

«In  view  of  the  provisions  of  section  17  of  the  act  of  June  22,  1870  (sec.  189,  R.  S.), 
transferring  to  the  Department  of  Justice  the  authority  to  employ  counsel  for  the 
Executive  Departments,  neither  the  Secretary  of  War  nor  the  Secretary  of  the  Navy 
is  now  authorized  to  retain  a  civilian  lawyer  to  act  as  judge-advocate  of  a  court- 
martial.  13  Opin.  Att.  Gen.,  514 ;  14  ibid.,  13. 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  495. 

1310.  That  whenever  a  court-martial  shall  sit  in  closed  cateuto Withdraw 
session  the  judge-advocate  shall  withdraw,  and  when  his  g°m  dosed  ses- 
legal  advice  or  his  assistance  in  referring  to  recorded  evi.  1892°v227Jul2787' 
dence  is  required  it  shall  be  obtained  in  ODen  court.1    Sec- 

2,  act  of  July  27,  1892  (27  Stat.  L.,  278). 

1311.  Every  judge- advocate  of  a  court-martial  shall  have    Wi^nf88e^co™- 

polled  to  attend. 

power  to  issue  the  like  process  to  compel  witnesses  to  79Mgar253'v18i23'  c' 
appear  and  testify  which  courts  of  criminal  jurisdiction  75i;  June23,i874, 
within  the  State,  Territory,  or  District  where  such  military  244. 
courts  shall  be  ordered  to  sit,  may  lawfully  issue.2 

which  he  is  personally  interested  as  accuser  or  prosecutor.  Where  the  judge- 
advocate  had  prepared  the  charges  and  was  the  accuser  in  the  case,  and  moreover 
entertained  a  strong  personal  prejudice  or  hostility  against  the  accused,  held  that  he 
was  ill  chosen  to  act  as  judge-advocate,  especially  in  the  capacities  of  prosecuting 
official  and  adviser  to  the  court.  A  personal  animus  against  the  accused  is  particu- 
larly unbefitting  a  judge-advocate  in  a  case  where  the  accused  is  not  represented  by 
counsel.  One  who,  without  personal  prejudice  against  the  accused,  or  interest  in  his 
conviction,  has  signed  the  charges  as  company  commander  may  not  improperly  act 
as  judge-advocate  in  the  case.  (Ibid.,  p.  462,  par.  26.) 

While  a  judge-advocate  is  not  subject  to  challenge,  and  it  can  not  affect  the  legal 
validity  of  the  proceedings  of  a  court-martial  that  the  judge-advocate  was  personally 
objectionable  or  hostile  to  the  accused,  it  is  yet  desirable  to  detail  as  judge-advocate, 
if  practicable,  an  officer  who  has  no  considerable  prejudice  against  the  party  to  be 
tried,  or  any  decided  personal  interest  in  his  case.  Thus  the  selection  as  jndge- 
advocate  of  an  officer  who  was  not  only  a  material  witness  for  the  prosecution,  but 
was  the  next  in  the  line  of  promotion  and  would  be  promoted  in  case  the  accused, 
an  officer  of  his  regiment  of  a  higher  grade,  were  dismissed  by  the  court,  remarked 
upon  as  an  unfortunate  one.  (a)  (Ibid.,  par.  8.) 

A  competent  judge-advocate  will  properly  be  left  by  the  court  to  introduce  the 
testimony  in  the  form  and  order  deemed  by  him  to  be  the  most  advantageous,  and 
generally  to  bring  on  cases  for  trial  and  conduct  their  prosecution  according  to  his 
own  judgment,  (b)  (Ibid.,  458,  par.  11.) 

The  judge-advocate  is  entitled  by  usage  to  sum  up  the  case  and  present  an  argu- 
ment at  the  conclusion  of  the  trial,  even  though  the  accused  declines  to  make  argu- 
ment or  statement.  The  court  is  not  authorized  to  deny  this  right  to  be  heard  to  the 
judge-advocate.  (Ibid. ,462,  par.  30.)  In  our  practice  he  is  entitled  to  the  closing 
argument;  he  is  not  authorized  to  read  to  the  court  evidence  or  written  statements 
not  introduced  upon  the  trial  and  which  the  accused  has  had  no  opportunity  to  con- 
trovert or  comment  upon.  (Ibid.,  460,  par.  21.) 

A  judge-advocate  is  not  authorized  to  entertain  charges  in  the  first  instance;  he 
can  properly  act  upon  charges,  i.  e.,  make  service  of  the  same,  prepare  the  case  for 
trial,  etc.,  only  when  the  charges  are  transmitted  to  him  for  the  purpose  by  the  offi- 


cer who  has  convened  the  court  or  detailed  him  as  judge- advocate.  (Ibid.,  457,  par.  9.) 
1  It  is  strictly  the  proper  practice  for  a  judge-advocate  not  to  give  his  opinion  upon 
a  point  of  law  arising  upon  a  military  trial,  unless  the  same  may  be  required  by  the 
court.  This  practice,  however,  is  often  departed  from,  and  the  opinions  of  judge- 
advocates,  suitably  tendered,  are  in  general  received  and  entertained  by  the  court 
without  objection,  whether  or  not  formally  called  for.  But  where  the  court  does 
object  to  the  giving  of  an  opinion  by  the  judge-advocate  he  is  not  authorized  to 
attempt  to  give  it,  and  of  course  not  authorized  to  enter  it  upon  the  record.  Whether 
tbe/ac£  that  the  opinion  was  offered  and  objected  to  by  the  court  shall  be  entered 
upon  the  record  is  a  matter  for  the  court  alone  to  decide.  It  is,  however,  certainly 
the  better  practice  that  all  the  proceedings,  even  those  that  are  irregular,  which 
transpire  in  connection  with  the  trial,  should  be  set  out  in  the  record  for  the  inspec- 
tion of  the  reviewing  authority.  (Ibid.,  459,  par.  15.) 

The  law  (act  of  July  27, 1892,  c.  272,  s.  2)  requiring  the  withdrawal  of  the  judge- 
advocate  whenever  the  court  "  sit  in  closed  session, "  held  not  to  apply  to  a  meeting 
of  the  court,  had  after  judgment,  to  hear  read  the  record  of  the  findings'  and  sentence, 
such  proceeding  being  no  part  of  the  trial.  (Ibid.,  462,  par.  29.) 

2  PROCESS  OF  ATTACHMENT. 

Section  1202,  Revised  Statutes,  authorizes  only  judge-advocates  of  courts-martial 
to  issue  process  to  compel  the  attendance  of  witnesses.  The  court  itself,  general  or 
inferior,  has  no  such  power.  (Dig.  Opin.  J.  A.  Gen.,  463,  par.  33.) 

The  judge-advocate  is  authorized  only  to  initiate  the  process  of  attachment.  The 
statute  does  not  specify  by  whom  it  shall  be  executed,  and  the  judge-advocate  is  not 
authorized  to  command  any  officer  or  person  to  serve  it,  nor  has  the  court  any  such 
power.  Paragraph  923,  Army  Regulations,  1895,  makes  provision  on  this  point. 
(Ibid.,  par.  34.) 

A  judge-advocate,  haying  attached  a  civilian  witness  and  had  him  brought  to  the 
place  of  the  court,  detained  him  one  hour  in  the  guardhouse  before  bringing  him 
before  the  court.  For  this  he  was  indicted  for  false  imprisonment  in  a  United 

a  See  G.  C.  M.  0. 5,  War  Department,  1871 ;  G.  C.  M.  O.,  41,  ibid.,  1875. 

6  Compare  G.  C.  M.  O.  97,  Department  of  Dakota,  1878;  ibid.  38,  Department  of 
Texas,  1878;  and,  as  to  the  civil  practice,  United  States  v.  Burr,  1  Burr's  Trial,  85, 
469;  Lynch  v.  Benton,  3  Rob.,  105;  Davany  v.  Koon,  45  Miss.,  71. 


244. 


496  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Beporter^  ^  1312.  The  judge- advocate  of  a  military  court  shall  have 
75,  s.r28,'v.  i2,V  power  to  appoint  a  reporter,  who  shall  record  the  proceed- 
r^s,  sn2,v.  i8,'pl  ings  of,  and  testimony  taken  before,  such  court,  and  may 

s'ec.  1203,  R.S.  set  down  the  same,  in  the  first  instance,  in  short-hand. 

States  district  court  in  Texas.  Held  that  his  action  was  warranted  under  section 
1202,  Revised  Statutes,  and  advised  that  the  Attorney-General  be  requested  to  cause 
the  prosecution  to  be  discontinued.  (Ibid.,  par.  35.) 

The  authority  to  issue  process  to  compel  civilian  witnesses  to  appear  and  testify 
is  vested,  by  section  3202,  Revised  Statutes,  in  "every  judge-advocate  of  a  court- 
martial  "  The  present  statute,  however  (unlike  the  original  form),  does  not  extend 
the  authority  to  recorders  of  courts  of  inquiry.  Further,  the  authority,  being  vested 
exclusivley  and  independently  in  the  judge-advocate,  can  not  be  exercised  by  the 
court.  The  attachment  is  thus  not  a  writ  or  process  of  the  court,  but  simply  a  com- 
pulsory instrumentality  placed  at  the  disposition  of  the  judge-advocate  as  the 
prosecuting  official  representing  the  United  States.  (Ibid.  757,  par.  27.) 

To  authorize  a  resort  to  an  attachment,  there  must  have  been  a  formal  summons, 
duly  issued  and  served  upon  the  witness,  and  not  complied  with.  (Ibid.,  par.  28.) 

Held  that  the  statute  could  not  properly  be  construed  as  authorizing  the  issue  of 
an  attachment  to  compel  a  witness  to  attend  before  a  commissioner  or  other  person 
and  give  his  deposition.  (Ibid.,  par.  29.) 

A  Judge-advocate  can  not  properly  direct  an  attachment  to  a  United  States  mar 
8hal  or  deputy  marshal  or  other  civil  official.  Some  military  officer  or  person  should 
be  designated  by  him,  or  detailed  for  the  purpose  by  superior  authority,  (a)  In  exe- 
cuting the  attachment,  the  needful  force  may  be  employed,  but  no  more.  See  Dig. 
J.  A.  Gen.,  p.  463,  par.  32,  and  p. 757,  par.  31.  See,  also,  MANUAL  FOR  COURTS-MARTIAL, 
pp.  32-35  and  140,  and  par.  923,  A.  R.,  1895. 

ATTENDANCE  OF  WITNESSES. 

The  attendance  of  witnesses  is  obtained  as  to  military  persons  by  military  orders 
issued  by  competent  authority ;  as  to  civilians,  by  the  issue  of  a  writ  of  subposna. 
(For  forms  of  this  writ  see  Manual  for  Courts  Martial,  pp.  138, 139.)  The  latter  form 
of  process,  being  inapplicable  to  the  case,  is  never  issued  to  a  military  person  The 
duty  of  the  judge-advocate  in  this  respect  is  described  in  the  following  paragraph  of 
the  Army  Regulations: 

"  The  judge-advocate  will  summon  the  necessary  witnesses  for  the  trial,  but  will  not 
summon  witnesses  at  the  expense  of  the  Government  without  the  order  of  the  court, 
unless  satisfied  that  their  testimony  is  material  and  necessary  "  (Par.  922,  A.  R., 
1895.) 

A  judge-advocate  is  authorized  to  subpoena  witnesses  only  for  testifying  in  court; 
he  can  not  summon  a  witness  to  appear  before  himself  tor  preliminary  examination. 
For  this  purpose  he  must  procure  an  order  to  be  issued  by  the  proper  commander. 
(Dig.  J.  A.  Gen  ,  p.  462,  par.  31  ) 

A  judge-advocate  has  no  authority  to  employ  a  civil  official  or  private  civilian  to 
serve  subpoenas,  if  by  so  doing  the  United  States  will  be  subjected  to  a  claim  for 
compensation.  (Ibid'.,  p.  463,  par.  32.) 

Except  where  their  testimony  will  be  merely  cumulative,  and  will  clearly  add 
nothing  whatever  to  the  strength  of  the  defense  (see  ninety  third  article),  the  accused 
is  in  general  entitled  to  have  auy  and  all  material  witnesses  summoned  to  testify  in 
his  behalf,  (b)  A  prompt  obedience  to  a  summons  is  incumbent  upon  all  witnesses, 
nor  is  a  commanding  or  superior  officer  in  general  authorized  to  place  any  obstacles 
in  the  way  of  the  prompt  attendance,  as  a  witness,  of  an  inferior  duly  summoned  or 
ordered  to  attend  as  such,  (c)  Where  the  judge-advocate  has  declined  to  summon  a 
witness  for  the  accused,  for  the  reason  that  he  is  not  "satisfied"  (in  the  words  of 
paragraph  922  of  the  Army  Regulations  of  1895)  that  his  testimony  is  "material  and 
necessary  to  the  ends  of  justice,"  the  court  may,  in  its  discretion,  direct  him  to  be 
summoned.  The  court,  however,  will  not  in  general  properly  sanction  the  summon. 

a  Upon  the  subject  of  the  execution  of  process  of  attachment  in  military  cases, 
see  the  opinion  of  the  Attorney  General  in  12  Opins.,  501 ;  also  the  directions,  based 
upon  the  same,  of  G.  0. 93,  H.  Q,  A.,  1868. 

Prior  to  the  adoption  of  the  Constitution,  Congress  (then  the  Government)  appears 
to  have  relied  upon  the  State  authorities  for  the  necessary  process  to  compel  the 
attendance  of  witnesses  before  military  courts.  (See  resolution  of  November  16, 
1779;  III  Journals  of  Congress,  392.)  In  the  British  law,  by  a  provision  first  incor- 
porated in  the  mutiny  act  in  the  year  1800,  witnesses  neglecting  to  comply  with  a 
summons  requiring  their  presence  at  such  courts,  are  made  "liable  to  be  attached  in 
the  court  of  Queen's  Bench,"  etc.  This  provision  well  illustrates  the  close  con- 
nection between  the  executive  and  the  other  governmental  powers  in  the  British 
constitution,  where  the  sovereign  is  a  part  of  the  judiciary  as  well  as  of  the  legisla- 
ture. The  fact  of  the  express  distinction  and  separation  of  the  three  powers  in  our 
own  organic  law,  one  result  of  which  has  been  to  leave  courts  martial,  as  agencies  of 
the  executive  power,  quite  independent  of  any  review  or  control  on  the  part  of  the 
United  States  courts,  has  also  no  doubt  availed  to  preclude  the  devolving  upon  the 
Federal  tribunals  of  a  power,  fitly  conferred  in  the  foreign  statute,  but  which,  with 
us,  would  be  exceptional  and  out  of  harmony  with  our  constitutional  system. 

It  may  be  added,  in  regard  to  the  exercise  of  the  authority  to  issue  compulsory 
process,  as  vested  in  judge-advocates  by  the  act  of  1863  (sec.  1202,  R.  S.),  that  the 
occasions  of  such  exercise  have  not  been  frequent  in  practice,  and  no  case  is  known 
in  which  such  authority  has  been  abused. 

6  See  G.  C.  M.  O.  21,  24,  War  Department.  1872;  G.  C.  M.  O.  128,  Headquarters  of 
Army.  1876. 

cSee  G.  C.  M.  O.  18,  Department  of  the  Platte,  1877. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  497 

The  reporter  shall,  before  entering  npoii  his  duty,  be  sworn, 
or  affirmed,  faithfully  to  perform  the  same.1  . 

ing  of  a  witness  where  it  is  not  probable  that  his  attendance  can  be  secured  within 
a  reasonable  time  and  his  deposition  legally  be  taken  pursuant  to  the  ninety-first 
article  of  war.  (Ibid.,  751,  par.  9.) 

In  military  law  an  accused  party  can  not  be  deemed  to  be  entitled  to  have  a  wit- 
ness summoned  from  a  distance  whose  military  or  administrative  duties  are  of  such 
a  character  that  they  can  not  be  left  without  serious  prejudice  to  the  public  interests. 
Article  6  of  the  amendments  to  the  Constitution,  declaring  that  the  accused  shall  bo 
entitled  "to  be  confronted  with  the  witnesses  against  him,"  applies  only  to  cases 
before  the  United  States  courts.  Thus  where  the  offense  charged  is  not  capital,  and 
a  deposition  may  therefore  legally  be  taken  under  the  ninety-first  article  of  war,  the 
Secretary  of  War  will  not  in  general  authorize  the  personal  attendance  at  the  place 
of  trial  of  a  witness  whose  office  or  duty  makes  it  necessary  or  most  important  that 
ho  should  remain  elsewhere.  (Ibid.,  752,  par.  10.) 

An  accused  party  at  a  military  trial  can  rarely  be  entitled  to  demand  the  attend- 
ance, as  a  witness,  of  a  chief  of  a  staff  corps,  much  less  that  of  the  President  or  Sec- 
retary of  War,  especially  as  some  minor  official  can  almost  invariably  furnish  the 
desired  facts.  If,  however,  the  testimony  of  one  of  these  officials  be  found  to  be 
necessary  or  most  desirable,  and  the  same  can  not  legally  be  taken  by  deposition,  the 
court,  if  convened  at  a  distance,  may  properly  be  adjourned  to  Washington  or  other 
convenient  point,  in  order  that  the  witness  may  be  enabled  to  attend  without  detri- 
ment to  the  public  interests.  (Ibid.,  par.  11.) 

Service  of  summons.— A  summons  may  legally  be  served  either  by  a  military  or  a 
civil  person,  (a)  but  will  in  general  preferably  be  served  by  an  officer  or  noncommis- 
sioned officer  of  the  Army.  A  judge-advocate,  or  a  commanding  or  other  officer  to 
whom  a  summons  is  sent  for  service,  will  not  be  authorized,  by  employing  for  the 
purpose  a  United  States  marshal  or  deputy  marshal,  or  other  civil  official,  to  commit 
the  United  States  to  the  payment  of  fees  to  such  official.  The  action,  however,  of  a 
judge-advocate  in  employing  a  deputy  marshal  to  serve  a  summons,  where  appar- 
ently the  service  could  not  otherwise  be  so  effectually  or  economically  made,  has  in 
a  few  cases  been  so  far  ratified  by  the  Secretary  of  War  as  to  allow,  out  of  the  appro- 
priation for  Army  contingencies,  the  payment  of  a  small  and  reasonable  account  of 
charges  rendered  by  such  official.  (Ibid.,  753,  par.  13.) 

There  is  no  fee  or  compensation  established  or  authorized  to  be  paid,  by  statute 
or  regulation,  for  the  service  of  subpoenas  for  the  attendance  of  witnesses  before 
civil  courts.  Neither  a  commanding  officer  nor  a  judge-advocate  is  authorized  to 
employ  a  civil  official  or  any  civilian  for  such  service  or  to  commit  the  United  States 
to  the  payment  of  any  compensation  to  such  a  person.  But  in  a  case  where  the  em- 
ployment of  a  civilian  for  such  purpose  had  been  resorted  to,  and  it  clearly  appeared 
that  to  employ  him  was  the  most  economical  as  well  as  effectual  course  open  to  the 
oflicer,  advised  that  his  reasonable  compensation  be  paid  out  of  the  appropriation 
for  contingencies  of  the  Army.  (Ibid.,  760,  par.  39.)  See,  also,  MANUAL  FOE  COURTS- 
MARTIAL,,  pp.  32-35. 

1  EMPLOYMENT  OF  REPORTERS. 

The  only  authority  for  the  employment  of  reporters  for  courts-martial  is  that  con- 
tained in  section  1203,  Revised  Statutes,  which  authorizes  the  judge-advocate  of  a 
military  court  to  appoint  a  reporter  for  such  court.  In  view  of  this  statute,  held 
that  the  appointment,  by  a  judge-advocate  on  the  staff  of  a  department  commander, 
of  a  person  to  act  as  reporter  for  all  the  courts  to  be  convened  in  the  department, 
was  in  contravention  of  law  and  of  no  effect.  (Ibid.,  461,  par.  23.) 

The  employment  of  a  stenographic  reporter,  under  section  1203,  Revised  Statutes, 
is  authorized  for  general  courts  only,  and  in  cases  where  the  convening  authority 
considers  it  necessary.  The  convening  authority  may  also,  when  necessary,  author- 
ize the  detail  of  an  enlisted  man  to  assist  the  judge-advocate  of  a  general  court  in 
preparing  the  record.  (Par.  958,  A.  R.,  1895.) 

When  a  reporter  is  employed  under  section  1203,  Revised  Statutes,  he  will  be  paid 
not  to  exceed  $10  a  day  during  the  whole  period  of  absence  from  his  residence,  trav- 
eling or  on  duty,  which  shall  be  in  full  for  taking  and  transcribing  all  notes,  making 
such  number  of  copies  to  be  made  at  one  writing  as  the  judge-advocate  may  require, 
and,  unless  otherwise  specially  ordered  by  the  Secretary  of  War,  in  full  for  all  serv- 
ices rendered  and  expenses  incurred  by  the  reporter.  In  special  cases,  when  author- 
ized by  the  Secretary  of  War,  stenographic  reporters  may  be  employed  at.rates  not 
exceeding  25  cents  per  folio  (100  words)  for  taking  and  transcribing  the  notes  in 
shorthand,  or  10  cents  per  folio  for  other  notes,  exhibits,  and  appendices.  Reporters 
will  be  paid  by  the  Pay  Department  on  the  certificate  of  the  judge-advocate.  (Par. 
959,  ibid.) 

No  person  in  the  military  or  civil  service  of  the  Government  can  lawfully  receive 
extra  compensation  for  clerical  duties  performed  for  a  military  court.  (Par.  960, 
ibid.)  See,  also,  MANUAL  FOR  COURTS-MARTIAL,  pp.  25-26. 

INTERPRETERS. 

Interpreters  to  courts-martial  are  paid  by  the  Pay  Department  upon  the  certifi- 
cate of  the  judge-advocate  that  they  were  employed  by  order  of  the  court.  They 
will  be  allowed  the  pay  and  allowances  of  civilian  witnesses.  (Par.  961,  A.  R.,  1895.) 

A  form  of  oath  for  the  interpreter  to  a  court-martial  will  be  found  at  page  29,  par. 
5,  of  the  Manual  for  Courts-Martial. 

MISCELLANEOUS  PROVISIONS. 

A  judge-advocate  of  a  court-martial  may  be  detailed  to  perform  other  duty,  as  that          i 
of  officer  of  the  day  or  member  of  a  board  of  survey,  if  such  duty  will  not  interfere 

. .  i 

a  See  G.  0. 93,  Headquarters  of  Army,  1868. 

1919 32 


498  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 


RECORD  OF  PROCEEDINGS. 

Record,  dispo-  1313.  Every  judge-advocate,  or  person  acting  as  such,  at 
81  July  IT,  1862,  c.  anv  general  court-martial,  shall,  with  as  much  expedition  as 
P.  598-  July' 2s|  the  opportunity  of  time  and  distance  of  place  may  admit, 
v8i4,  p.  334';  Marl  forward  the  original  proceedings1  and  sentence  of  such 

3,  1877,  c.  102,  v. 

113  Art.  War.  with  his  duties  as  judge-advocate.  But  in  general  of  course  no  duties,  in  addition 
to  those  incidental  to  his  function  as  judge-advocate,  should  be  imposed  upon  him 
pending  an  important  trial.  (Ibid.,  460,  par.  20.) 

The  general  presumption  of  law,  made  in  favor  of  all  public  officers,  in  the 
absence  of  affirmative  evidence  to  the  contrary,  that  they  duly  fulfill  their  functions, 
applies  to  the  judge-advocate.  (Ibid.,  462,  par.  27.) 

1  Though  courts-martial  are  not,  in  the  legal  sense,  courts  of  record,  (a)  yet  it  is 
clearly  contemplated  by  the  statute  law  (see  the  one  hundred  and  thirteenth  and 
one  hundred  and  fourteenth  articles  of  war,  taken  from  the  old  ninetieth  article ; 
also  the  later  provision  incorporated  in  section  1199,  Revised  Statutes,  that  a  court- 
martial  shall  make  a  formal  record  of  its  proceedings,  and  the  Army  Regulations  of 
1895,  in  paragraphs  954-957,  etc.,  direct  as  to  the  substance  and  form  of  the  record  in 
certain  particulars.  Upon  such  basis,  the  record  of  a  court-martial  has  come  to  be, 
in  our  practice,  a  full'report  and  recital  of  the  details  of  the  trial  in  each  case,  in- 
cluding (and  herein  it  differs  from  a  judicial  record  in  the  civil  procedure)  all  the 
testimony  introduced.  As  to  the  character,  effect,  and  proper  contents  of  a  record  of 
a  military  court  (the  same  rules  being  held  to  apply  in  the  main  to  records  of  inferior 
as  to  those  of  general  courts),  the  Judge- Advocate-General  has  held  as  follows : 

(1)  That  (in  view  of  the  requirement  of  paragraph  954,  Army  Regulations  of  1895, 
that  "  every  court-martial  will  keep  a  complete  and  accurate  record  of  its  proceed- 
ings") the  entire  proceedings  and  action  of  the  court  upon  the  trial  should  be  fully 
set  forth,  including  the  organization,  challenges  to  members  (if  any),  arraignment, 
pleas,  testimony  of  witnesses  and  documentary  evidence,  motions  and  objections,  with 
the  substance  of  the  arguments,  if  any,  thereon,  rulings  of  the  court  on  interlocutory 
questions,  adjournments,  continuances,  closing  addresses  or  statements,  findings,  and 
sentence — in  short,  every  part  and  feature  of  the  proceedings,  material  to  a  complete 
history  of  the  trial  and  to  a  correct  understanding  by  the  reviewing  officer  both  of 
the  merits  of  the  case  and  of  the  questions  of  law  arising  in  the  course  of  the  inves- 
tigation.^)   Where  a  sentence  is  pronounced,  the  record  should  contain  everything 
necessary  to  sustain  it  in  fact  and  in  law. 

(2)  That  the  record  of  each  case  tried  by  a  court-martial,  where  several  cases  are 
tried  thereby,  should  be  "complete  in  itself"  (par. 954,  A. R.),  and  as  much  an  en- 
tirety, both  in  form  and  in  substance,  as  if  it  were  the  only  case  tried.    Each  record 
should  be  separate  and  distinct  from  every  other  record,  containing  all  that  is  essen- 
tial to  an  original  and  independent  official  paper,  and  so  perfected  as  to  leave  no 
material  detail  to  be  supplied  from  any  previous  or  other  record.    The  proceedings  in 
each  case  should  be  made  up  separately ;  records,  therefore,  should  not  be  attached 
together,  but  should  be  prepared  and  transmitted  as  disconnected  documents. 

(3)  That  the  copy  of  the  convening  order,  directed,  by  paragraph  954,  Army  Reg- 
ulations, to  be  "set  out"  in  each  case,  should  properly  be  prefixed  to  the  proceedings, 
as  constituting  the  initial  authority  for  the  existence  and  action  of  the  court.    This 
order  should  of  course  be  complete,  and  should  exhibit,  by  its  heading  and  its  sub- 
scription, that  it  has  proceeded  from  a  commanding  officer  competent  to  order  the 
court.    Where  several  cases  are  tried  by  the  same  court,  a  separate  copy  of  the  order 
should  accompany  the  record  in  each  case;  only  to  prefix  a  single  copy  to  the  first 
of  a  series  of  records  attached  together  is  irregular  and  in  violation  of  the  regula- 
tion as  well  as  the  general  rule  that  every  record  should  be  "complete in  itself." 
Where  subsequent  orders  have  been  issued,  adding  or  relieving  members  or  a  judge- 
advocate,  or  otherwise  modifying  the  original  convening  order,  copies  of  these  should 
follow  the  original  or  be  elsewhere  incorporated  in  the  record.    In  their  absence  it 
may  not  be  possible  to  determine  on  the  face  of  the  record  whether  the  officers  who 
composed  the  court  on  the  trial  were  actually  or  legally  detailed  therefor,  or  whether 
the  prosecuting  judge-advocate,  or  the  judge-advocate  who  authenticates  the  pro- 
ceedings, was  so  detailed.    In  connection,  however,  with  any  order  making  a  change 
in  the  original  detail  of  members  or  substituting  a  new  judge-advocate,  the  record 
should  note  the  fact  of  the  new  member  taking  his  seat,  or  new  judge-advocate  com- 
mencing to  officiate,  according  to  the  order,  on  a  certain  day.     Where  less  than 
thirteen  members  are  detailed  in  the  original  order,  it  has  been  usual  to  add  therein 
a  statement  to  the  effect  that  "no  other  officers  than  those  named  can  be  assembled 
•without  manifest  injury  to  the  service."    Such  addition,  however,  is  not  required  by 
article  75,  and  is  not  essential. 

(4)  That  the  record  should  show  that  the  court  met  and  organized  pursuant  to  the 
order  or  orders  constituting  it.    It  is  necessary,  first,  to  the  due  organization  of  a 
general  court-martial  that  there  should  assemble,  at  the  time  and  place  indicated  in 
the  order,  at  least  a  quorum,  i.e.,  five,  of  the  officers  detailed  as  members.    And 
the  record  should  show  that  at  least  five  members  were  present  and  acting,  not  only 
at  the  original  assembling  and  proceeding  to  business  as  well  as  at  the  formal  or- 
ganization after  the  right  of  challenge  has  been  fully  exercised,  but  also  at  every 
day's  session  throughout  the  trial  to  the  end.    The  record  of  the  first  assembling 
should,  preferably,  specify  the  members  present  by  name,  rank,  etc.    The  state- 
ment that  "  all  the  members''  were  present,  while  strictly  sufficient,  is  not  a  form  to 
be  favored.    A  statement  to  the  effect  that  the  same  members  were  present  as  at  a 

a  See  Chambers  v.  Jennings,  7  Modern,  125;  Ex  parte  Watkins,  3  Peters,  209;  Wil- 
son v.  John,  2  Binney,  215. 
b  Compare  Coffin  v.  Wilbour,  7  Pick.  (Mass.),  151. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  499 

court  to  the  Judge- Advocate-General  of  the  Army,  in  whose 
office  they  shall  be  carefully  preserved.  One  hundred  and 
thirteenth  Article  of  War. 

previous  trial  by  the  same  court  is  improper,  as  being  in  contravention  of  the  rule 
that  the  record  of  each  case  should  be  an  entirety  and  not  made  up  as  to  any  partic- 
ular by  a  reference  to  a  record  of  a  previous  case.  As  to  the  statement  or  the  as- 
sembling of  the  court  on  the  days  subsequent  to  the  day  of  the  organization,  it  is 
sufficient  to  note  that  all  the  members  were  present  or  that  the  same  were  present 
as  on  the  day  before  or  as  at  the  last  preceding  session,  The  record  should  also 
show  the  presence  of  the  accused  at  the  time  of  the  organization  of  the  court  for 
his  trial,  as  also  at  all  the  material  stages  and  portions  of  the  proceedings,  (a)  (See 
Circ.  No.  5  (H.Q.  A.),  1891.) 

(5)  That  the  record  should  show  that  the  order  or  orders  convening  the  court  and 
detailing  the  members  were  read  to  the  accused  or  communicated  to  him,  and  that  he 
was  afforded  an  opportunity  of  objecting  to  any  member— that  is  to  say,  that  the  priv- 
ilege of  challenge,  accorded  and  defined  by  the  eighty-eighth  article  of  war,  was 
extended  to  him.    This  testing  of  the  members  is  the  second  essential  to  the  due 
organization  of  the  court,  and  though  the  phraseology  of  the  question  put  to  the 
accused,  or  of  his  answer  thereto,  need  not  be  given  in  the  record,  it  should  clearly 
appear  either  that  he  had  (or  made)  no  objection,  or,  if  he  made  any,  what  it  was. 
Where  a  specific  challenge  is  offered,  it  should,  preferably,  be  recorded  in  the  terms 
in  which  it  is  expressed  by  the  accused  ;  and.  in  connection  with  each  challenge,  the 
record  should  set  forth  the  remarks  of  the  member,  if  any,  and  the  action  of  the 
court,  as  also,  if  an  issue  be  joined  on  the  challenge,  the  evidence,  if  any,  introduced, 
and  the  substance  of  the  argument  had.    Where  a  member  is  added  to  the  court  at  a 
subsequent  stage  of  the  proceedings,  the  records  should  similarly  show  that  the 
accused  was  afforded  an  opportunity  of  objecting  to  him,  and  set  forth  theaction  taken 
if  objection  was  made.    It  may  be  added  that  while,  with  the  convening  order,  any 
subsequent  orders  by  which  the  original  detail  may  have  been  modified  should  be 
read  to  the  accused,  the  fact  that  other  orders  relating  to  the  court,  but  not  to  its  per- 
sonnel, such  as  an  order  changing  the  place  of  meeting  or  an  order  authorizing  the 
court  to  sit  without  regard  to  hours,  may  not  have  been  so  read,  will  not  constitute  an 
irregularity.    It  is  usual,  however,  and  proper,  to  read  all  such  orders,  equally  with 
those  relating  to  the  composition  of  the  court,  in  the  presence  of  the  accused. 

(6)  That  the  record  should  show,  as  the  final  essential  to  the  due  organization  of 
the  court,  that  the  members  and  the  judge-advocate  were  qualified  by  being  duly 
sworn,  and  this  should  be  shown  in  the  record  of  every  case  tried  by  the  same 
court,  since  the  court  and  judge-advocate  must  be  sworn  independently  and  anew 
for  each  trial,  (b)    The,  approved  form  for  recording  this  proceeding  is :  "  The  mem- 
bers of  the  court  and  the  judge-advocate  were  then  duly  sworn. "(c)     Any  statement, 
however,  will  be  legally  sufficient  from  which  it  can  be  gathered  by  the  reviewing 
officer,  or  presumed,  that  the  members  and  judge-advocate  were  in  fact  qualified  as 
required  by  articles  84  and  85.     Where  an  absent  member  joins  or  a  new  member  is 
added  to  the  court,  or  the  first  judge-advocate  is  relieved  and  a  new  judge-advocate 
is  detailed,  at  a  stage  of  the  proceedings  subsequent  to  the  original  organization  and 
qualifying,  the  record  should  show  that  such  member  or  judge-advocate,  before  act- 
ing, was  sworn  as  above  indicated. 

(7)  That  the  record  should  further  set  forth  the  arraignment  of  the  accused  on  the 
charges  and  specifications,  with  the  plea  or  pleas  made.     The  charges  and  specifica- 
tions should  properly  be  embodied  in  the  record  instead  of  being  referred  to  as 
annexed.    If  special  pleas  are  interposed,  the  issue  joined  and  action  taken  upon  the 
same  should  be  clearly  stated. 

(8)  That  the  record  should  fully  set  forth  all  the  testimony  introduced  upon  the    - 
trial— the  oral  portion  as  nearly  as  practicable  in  the  precise  words  of  the  witness. 
For  a  judge-advocate  to  assume  to  record  only  such  testimony  as  he  considered 
material,  or  to  summarize  the  testimony  given,  has  been  remarked  upon  as  a  gross 
irregularity.    It  is  usual  and  proper  (though  not  essential)  to  specify  by  which 
party  the  witness  is  introduced  and  by  whom  the  questions  are  put.    It  is  also  usual 
to  designate  the  point  at  which  the  prosecution  is  closed  and  the  testimony  for  the 
defense  is  commenced.    It  should  appear  that  each  witness  (whether  or  not  his  evi- 
dence was  important)  was  duly  sworn,  but  it  is  not  customary  to  add  that  he 
was  sworn  in  the  presence  of  the  accused.    Objections  taken  to  the  admissibility  of 
testimony  should  beset  forth,  with  the  substance  of  the  argument  had  thereon,  if 
any,  and  the  ruling  of  the  court,  and  where  the  court  is  cleared  on  any  interlocutory 
objection,  the  fact  will  properly  be  noted.    (That  the  record,  in  view  of  the  enact- 
ment of  July  27, 1892,  should  now,  where  the  court  is  closed,  state  that  the  judge- 
advocate  withdrew,  see  paragraph  1310,  ante.) 

(9)  That  the  record  should  state  the  finding  on  each  of  the  several  charges  and 
specifications,  and  the  sentence  in  the  event  of  a  conviction.    In  a  case  of  a  death 
sentence,  it  is  usual  (though  not  essential,  not  being  required  by  the  ninety-sixth 
article)  to  state  that  it  was  concurred  in  by  two-thirds  of  the  members.    Care 
should  be  taken  that  there  be  no  variance,  in  the  statement  of  the  name,  etc.,  of  the 
accused,  between  the  finding  or  sentence  and  the  charges.    As  directed  by  para- 
graph 954,  Army  Regulations  of  1895,  the  record  should  be  "authenticated"  by  the 

a  Compare  Long  v.  State,  52  Miss.,  23. 

6 Compare  Coffin  v.  Wilbour,  7  Pick.,  150.  "It  is  not  considered  a  compliance 
with  "  paragraph  829,  Army  Regulations,  directing  that  "  the  court  is  to  be  sworn  at 
the  commencement  of  each  trial,"  "to  call  several  prisoners  into  coirrt  at  the  same 
time  and  swear  the  members  of  the  court  once  before  them  all."  G.  O.  60,  War 
Department,  1873. 

cThe  inversion  of  the  proper  order  of  swearing  the  court  and  judge-advocate  was 
held  by  the  Attorney-General  (13  Opins.,  374)  not  to  have  invalidated  the  proceedings 
of  a  naval  court-martial. 


500  THE   MILITARY    LAWS   OF    THE    UNITED    STATES. 

signatures  of  the  president  and  judge-advocate.  Where,  indeed,  there  are  no 
material  proceedings  after  the  sentence,  the  subscription  of  the  same  by  these  officers 
will  constitute  a  sufficient  authentication  of  the  record  as  a  whole.  Where  the 
president  or  judge-advocate  has  been  changed  pending  the  trial,  it  is,  of  course,  the 
fast  one  who  is  to  sign  the  record.  Adjournments  from  day  to  day  are  not  required 
to  be  authenticated. 

(10)  That  the  record  should  exhibit,  at  the  end  of  the  proceedings  of  the  court, 
the  action  thereon — approval  or  disapproval,  etc. — of  the  reviewing  authority.    This, 
though  it  has  sometimes  been  indorsed  on  the  outside  of  the  record,  is  preferably 
and  customarily  written  and  signed  within  the  record,  on  a  page  following  the  au- 
thenticated judgment  or  other  final  proceeding  of  the  court.    Where  several  cases 
are  tried  by  the  same  court,  the  action  of  the  reviewing  officer  should  be  entered  in 
the  record  of  each  trial.    Merely  to  indorse  it  upon  the  last  of  a  series  of  cases  would 
be  irregular  as  not  a  compliance  with  the  regulation.    So  it  is  irregular  for  the 
reviewing  officer,  in  lieu  of  writing  and  subscribing  his  action  in  the  record,  to 
annex  to  it  or  file  with  it  a  copy  of  a  general  order  promulgating  the  proceedings  and 
his  action  thereon.    Where  the  proceedings  are  to  be  forwarded  to  higher  authority 
for  final  action  on  the  sentence,  a  mere  reference,  as  by  the  words,  "respectfully 
referred,  or  forwarded,  to  the  President"  (or  other  superior)   "for  action,"  etc.,  is 
incomplete  and  irregular.    In  such  a  case  the  original  reviewing  officer  should  state 
his  approval,  etc.,  in  full  and  formal  terms. 

(11)  That,  where  the  court  is  reassembled  for  the  purpose  of  a  revision  of  its  pro- 
ceedings in  any  particular,  the  record  should  formally  recite  all  that  is  ordered  and 
done  as  a  new  and  independent  chapter  of  the  history  of  the  case  tried.    The  record 
of  a  revision  will  properly  begin  with  setting  forth  a  copy  of  the  order  reconvening 
the  court,  and  will  show  that  at  least  five  members  assembled,  together  with  the 
judge-advocate,  and,  where  the  correction  required  is  such  as  to  make  it  proper  that 
he  be  present,  the  accused.    The  record  will  further  show  the  action  taken  by  the 
court,  in  making  the  correction  or  otherwise,  under  the  order,  and  the  proceeding 
will  be  finally  authenticated  by  the  signatures  of  the  president  and  judge-advocate. 
Where  the  court  decides  upon  making  the  correction,  the  same  should  be  declared 
to  be  made  in  manner  and  form  as  determined  upon,  and  with  the  proper  reference  to 
the  part  of  the  original  proceedings  in  which  the  error  occurs.     The  error  itself, 
however,  is  to  be  left  as  originally  recorded,  all  corrections  in  the  body  of  the  record 
by  erasure,  interlineation,  etc.,  being  irregular  and  improper.    A  court-martial  is 
not  authorized,  either  at  a  revision  or  during  the  trial,  to  expunge  bodily  any  mate- 
rial words  or  statement  forming  a  part  of  its  record.    (Big.  Opin.  J.  A.  Gen.,  639-646.) 

Among  the  minor  points  held  by  the  Judge-Advocate-General,  in  connection  with 
the  subject  of  the  form  of  the  record,  are  the  following :  That  the  several  stages  of 
the  proceedings  of  the  court  should  appear  in  the  record  in  the  proper  order ;  thus, 
that  the  swearing  of  the  court  should  not  be  recorded  before  the  statement  as  to 
whether  the  accused  objected  to  any  of  the  members,  etc.  That,  in  its  statement  of 
the  opening  of  each  day's  session,  the  record  may  well  mention,  if  such  was  the 
fact,  that  the  proceedings  of  the  previous  day  or  session  (if  any  were  had  in  the  same 
case)  were  read  and  approved.  Such  a  reading,  however,  though  desirable  as  giving 
the  court  an  opportunity  to  make  corrections,  is  often  not  resorted  to,  and  even 
where  it  is,  is  not  always  noted  in  the  record.  That,  except  where  the  court  is  spe- 
cifically authorized  to  sit  "without  regard  to  hours,"  the  record — though  this  is  not 
essential,  the  niuty-fourth  article  of  war  not  requiring  it — may  well  set  forth  the 
hours  of  assembling  and  adjourning,  so  that  it  may  appear  that  its  sessions  did  not 
commence  earlier  than  8  o'clock  a.  in  or  continue  latter  than  3  o'clock  p.  m.  That, 
though  paragraph  1038,  Army  Regulations  of  1889,  in  directing  that  "the  record 
shall  be  clearly  and  legibly  written,"  and  "as  far  as  practicable  without  erasures  or 
interlineations,"  contemplates  that  the  record  will  be  written  by  hand,  there  is  no 
legal  objection  to  printing  the  record,  or  any  part  of  it  (such  as  the  charges  and 
specifications  where  numerous),  provided,  of  course,  the  signatures  of  the  President 
and  judge-advocate  are  written  by  them  in  person.  That  the  record  will  conven- 
iently and  properly  be  indorsed  on  the  outside,  or  cover,  so  that  the  name  of  the 
accused  and  the  court  by  which  lie  was  tried,  with  the  time  and  place  of  trial,  etc., 
will  be  apparent  without  opening  and  examining  the  proceedings,  (a)  (Ibid.,  646 
par.  2.) 

Unless  it  clearly  appears  to  the  contrary  on  the  face  of  the  record,  it  is  in  general 
to  be  presumed  therefrom  not  only  that  the  court  had  jurisdiction  in  the  case,  but 
also  that  the  proceedings  were  sufficiently  regular  to  be  valid  in  law.  (b)  (Ibid.,  647, 
par.  3.) 

ADJOURNMENT. 

The  adjournment  from  day  to  day  of  a  military  court  is  not  required,  by  law  or 
regulation,  to  be  authenticated  by  the  signatures  of  the  president  and  judge-advo- 
cate. (Ibid.,  145,  par.  1.) 

While  the  practice  of  noting  the  adjournment  of  the  court  at  the  end  of  the 
ecord  of  a  trial  is  a  usual  and  proper  one,  and  is  often  of  service  in  indicating  the 

a  For  form  of  briefing  record,  see  MANUAL  FOR  COURTS-MARTIAL,  p.  129. 

6  However  desirable  it  may  have  been,  in  view  of  the  numerous  and  serious 
defects  frequently  occurring  in  the  records  of  courts-martial  during  the  late  war,  and 
in  order  to  induce  a  greater  precision  and  uniformity  in  the  preparation  of  such 
records,  to  treat  (as  was  not  unfrequently  done)  the  more  grave  of  these  defects  aa 
tatal  to  the  validity  of  the  proceedings  or  sentence,  it  is  conceived  that  the  same,  in 
general,  might  properly  have  been  regarded,  and  may  now  be  regarded,  as  only  call- 
ing tor  or  justifying  a  disapproval  of  the  proceedings.  It  is  the  effect  of  the  rul- 
ings of  the  civil  courts  that  where  the  court  on  any  trial  was  legally  constituted, 
had  jurisdiction  of  the  case,  and  has  imposed  a  legal  sentence  or  judgment,  every 
reasonable  intendment  will  be  made  in  favor  of  the  regularity  of  its  proceedings, 
and  even  where  the  same  are  clearly  irregular  the  validity  of  the  result  will  not  be 
deemed  to  be  affected,  provided  no  statutory  provision  has  been  violated.  (See 
Mutton  v.  Blame,  2  Sergt.  &  Rawle,  75,  79;  Moore  v.  Houston,  3  ibid.,  197;  Trinity 
Church  v.  Higgins,  4  "Robt.,  1;  Edwards  v.  State,  47  Miss.,  581.)  And  it  is  further 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  501 

sequence  of  the  cases  tried  and  the  course  and  order  of  the  business  transacted,  a 
statement  of  such  adjournment  is  not  an  essential  part  of  the  record  of  proceedings, 
and  its  omission  will  not  affect  their  validity.  (Ibid.,  par.  2.) 

Where  the  order  convening  a  military  court  is  in  the  more  usual  form,  requiring 
it,  generally,  to  try  such  cases  as  may  be  brought  before  it,  an  adjournment  at  some 
period  of  its  sessions  without  a  day  fixed  for  its  reassembling  will  not  preclude  its 
meeting  again  and  continuing  its  sessions  till  its  business  is  terminated.  (Ibid., 
par.  3.) 

An  adjournment  "sine  die"  of  a  court-martial  is  quite  without  legal  significance, 
having  no  more  legal  effect  than  a  simple  adjournment.  Such  an  adjournment  does 
not  dissolve  the  court,  since  a  military  court  has  no  power  to  terminate  its  own 
existence  or  divest  its  authority.  (Ibid.,  par.  4.) 

A  court-martial  has  no  power  to  terminate  its  own  existence  or  function.  Where 
therefore  it  has  adjourned  "sine  die,"  it  may,  without  being  formally  reconvened  in 
orders,  reassemble  and  take  up  and  try  a  case  referred  to  it  by  the  convening  author- 
ity, through  its  president  or  judge-advocate,  precisely  as  if  it  had  not  adjourned  at 
all.  It  is  its  duty  indeed  to  hold  itself  in  readiness  to  try  all  cases  so  referred, 
until  formally  dissolved  by  the  convening  officer  or  his  successor  in  the  command. 
(Ibid.,  317,  par.  13.) 

A  court-martial  is  not  legally  dissolved  till  officially  informed  of  an  order,  from 
competent  authority,  dissolving  it.  The  proceedings  of  a  court-martial,  had  after 
the  date  of  an  order  dissolving  it,  but  before  the  court  has  become  officially  advised 
of  such  order,  will  thus  be  quite  regular  and  valid.  Where  an  order  dissolving 
forthwith  a  court  martial  has  been  duly  officially  received  by  the  court  and  has  thus 
taken  effect,  an  order  subsequently  received  revoking  this  order  will  be  entirely 
futile.  It  will  not  revive  the  court,  but  the  same,  to  be  qualified  for  further  action, 
must  be  formally  reconvened  as  a  new  and  distinct  tribunal.  (Ibid.,  par.  14.) 

An  adjournment ' '  sine  die  "  by  a  court-martial  does  not  dissolve  it,  and  the  review- 
ing authority  is  authorized  to  send  back  to  the  court  its  record  for  the  reconsidera- 
tion of  the  judgment,  and  the  court  itself  to  reconsider  and  reframe  the  sentence, 
subsequently  to  such  an  adjournment  and  without  regard  to  it.  (Ibid.,  320,  par.  30. 

A  court-martial  in  session  at  a  military  post  or  station  is  authorized  to  adjourn  to 
the  quarters,  at  the  same  post  or  station,  of  a  sick  witness  and  there  take  his  testi- 
mony, if  he  is  in  fact,  as  certified  by  the  medical  officer,  too  ill  to  come  to  the  court 
room,  (a)  (Ibid.,  146,  par.  5.) 

MISCELLANEOUS  PROVISIONS. 

Where  the  proceedings  of  a  court-martial  have  regularly  terminated,  and  the 
sentence  has  been  confirmed  and  ordered  to  be  executed  by  the  proper  and  final 
reviewing  authority,  the  fact  that  the  record  has  since  been  lost  does  not  impair  or 
affect  the  judgment  of  the  court,  and  constitutes  no  legal  obstacle  to  the  enforce- 
ment of  the  penalty.  But  where  the  record  of  the  trial  of  a  soldier  who  had  pleaded 
not  guilty,  and  in  whose  case  considerable  evidence  had  been  introduced,  was,  by  a 
casualty  of  war,  lost  before  any  action  had  been  taken  upon  the  sentence  by  the 
reviewing  officer,  held  that,  unless  the  court  could  be  reconvened  and  a  new  record 
could  be  made  out  from  extant  original  notes,  the  proceedings,  inasmuch  as  they 
could  not  be  intelligently  reviewed  or  formally  approved,  should  properly  be  con- 
sidered as  inoperative  and  the  sentence  of  no  effect.  (Dig.  Opin.  J.  A.  Gen.,  648, 
par.  4.) 

The  legal  record  of  a  court-martial  is  that  record  which  is  finally  approved  and 
adopted  by  the  court  as  a  body,  and  authenticated  by  its  president  and  judge-advo- 
cate. The  court  as  a  whole  is  responsible  for  the  record,  and  the  instrument  which 
it  approves  as  such  is  its  record,  however,  the  same  may  have  been  made  up.  It  is 
immaterial  to  the  sufficiency  of  a  record  whether  the  same  was  kept  or  written  by 
the  judge-advocate  or  a  clerk.  So  where  a  clerk  or  reporter,  appointed  and  sworn 
to  keep  the  record,  did  not  act,  but  the  record  was  prepared  by  the  judge-advocate 
or  some  other  person  employed  by  him  to  assist  him,  held  that  this  circumstance  did 
not  affect  the  validity  of  the  record  as  finally  approved  by  the  court.  (Ibid.,  649, 
par.  5.) 

The  record  of  a  trial  by  court-martial  should  include  a  record  of  meetings  where 
no  business  is  transacted.  (Ibid.,  650,  par.  6.) 

Recommended  that,  after  the  record  of  the  organization  at  the  first  session,  it  be 

held  that  the  regularity  or  validity  of  the  minor  details  of  the  proceedings  may  be 
shown  by  evidence  outside  the  record.  (Van  Deusen  v.  Sweet,  51  New  York,  378.) 
Similarly,  it  is  believed,  no  omission  or  error  in  a  record  of  court-martial,  not  in  con- 
travention of  express  statute,  should,  as  a  general  rule,  be  regarded  as  absolutely 
invalidating  the  proceedings  where  there  remains  enough  in  the  record  fairly  to  war- 
rant the  presumption  that  the  legal  requirements  have  oeen  complied  with,  or  where 
the  reviewing  authority  can  supply  the  defect  from  his  own  official  knowledge,  or 
from  current  orders  or  other  satisfactory  evidence  readily  available  to  him.  So 
where  no  copy  of  the  convening  order  accompanies  the  proceedings,  but  the  review- 
ing authority,  from  the  fact  of  having  issued  it  himself  or  from  the  records  of  the 
command  or  otherwise,  is  officially  apprized  that  the  court  was  duly  convened,  the 
proceedings  are  not  to  be  treated  as  fatally  defective,  but— the  court  appearing  in 
tact  to  have  been  constituted  and  to  have  acted  pursuant  to  the  order — may  be 
regarded  as  valid  in  law  though  imperfectly  recorded.  Where,  indeed,  the  record 
discloses  in  the  proceedings  of  a  general  court-martial  an  irremediable  defect  in  a 
vital  particular,  as  the  fact  that  the  court  was  composed  of  but  four  members,  the 
proceedings  and  sentence,  if  any,  must  be  held  inoperative,  since  the  statute  law, 
article  75,  has  fixed  five  members  as  the  legal  minimum  for  such  a  court.  But  where 
the  defect  occurs  in  a  less  material  feature,  or  is  one  of  form  only,  the  same,  while 
it  may,  if  of  a  grave  character,  properly  warrant  a  disapproval  of  the  proceedings, 
in  case  it  can  not  be  removed  by  a  revision  by  the  court  on  being  reassembled  for  the, 
purpose,  will  not  in  general,  it  is  held,  justify  the  reviewing  authority  in  pronounc- 
ing the  proceedings  to  be  void,  or  in  treating  them  as  necessarily  without  legal 
effect, 
a  See  G.  C.  M.  O.,  Department  of  the  East,  870. 


502  THE    MILITARY   LAWS   OF    THE    UNITED    STATES. 


THE   REVIEWING  AUTHORITY. 


Approval  of     1314.  No  sentence  of  a  court-martial  shall  be  carried  into 
ce?teonrde?i°nffig  execution  until  the  same  shall  have  been  approved  by  the 


court. 
104  Art.  War. 


simply  entered  at  the  beginning  of  a  day's  session:  "Present,  all  the  members  and  the 
judge-advocate."  Also,  that  -when  the  absence  of  an  officer  who  has  not  qualified, 
or  has  been  relieved  or  excused,  has  been  accounted  for,  no  further  notice  be  taken 
of  it.  (Ibid.,  par.  7.) 

It  is  not  customary  to  take  notice  in  the  record  of  a  mere  recess ,  but  if  a  recess 
be  noted  at  all  it  should  appear  from  the  record  that  on  the  reassembling  the  mem- 
bers, judge-advocate,  and  accused  were  duly  present.  (Ibid.,  par.  8.) 

When  the  court  closes,  the  record  should  (now)  properly  set  forth  that  the  judge- 
advocate  withdrew.  (Act  of  July  27, 1892,  sec.  2.)  But  an  absence  of  a  statement  to 
this  effect  will  not  impair  the  legal  validity  of  the  record.  Where  it  simply  appears 
from  the  record  that  the  court  "closed,"  the  presumption  will  be  that,  in  closing, 
the  requirements  of  law  were  observed.  (Ibid.,  par.  9.) 

The  record  need  not  show  affirmatively  that  the  accused  was  offered  an  opportu- 
nity to  cross-examine;  where  it  appears  that  lie  did  not  cross-examine,  the  presump- 
tion will  be  that  lie  waived  the  privilege.  So  the  record  need  not  state  that  the 
accused  was  notified  of  his  privilege  of  being  assisted  by  counsel.  So  it  need  not 
specifically  state  or  show  that  the  court  adjourned  at  or  before  3  o'clock  p.  m.  In  the 
absence  of  evidence  to  the  contrary,  it  will  be  presumed  to  have  done  so.  There  is 
always  a  presumption,  in  the  absence  of  obvious  irregularity,  that  the  proceedings 
were  regular  and  according  to  law.  (Ibid.,  par.  10.) 

It  is  not  essential  that  the  record  of  the  court  should  show  that  the  judge-advocate 
called  the  attention  of  the  accused  to  the  fact  of  his  privilege  of  testifying  in  his 
own  behalf.  (G.  0. 75  of  1887  requires  only  that  this  be  done  ' '  before  the  assembling 
of  the  court.")  (Ibid.,  par.  11.) 

Where  the  record  of  a  trial  failed  to  show  that  the  court  or  judge-advocate  was 
sworn,  held  that  the  conviction  and  sentence  were  without  legal  validity.  The 
qualification  by  swearing  is  enjoined  as  a  necessary  preliminary  by  articles  of  war 
84  and  85,  and  the  record  must  show  affirmatively  whatever  is  made  by  statute  essen- 
tial to  its  jurisdiction  and  the  legality  of  its  proceedings.  (Ibid.,  par.  12.) 

A  mere  clerical  error  in  the  spelling  of  the  name  of  the  accused,  leaving  it  idem 
sonans,  is  not  a  case  of  misnomer  and  does  not  affect  the  validity  of  the  proceedings 
as  recorded.  (Ibid.,  651,  par.  13.) 

It  is  not  necessary  to  encumber  a  record  by  spreading  upon  it  documents  or  other 
writing  or  matter  excluded  by  the  court.  But  it  should  specify  the  character  of 
the  writing  and  the  grounds  upon  which  it  was  ruled  out.  (Ibid.,  par.  14.) 

A  record  can  not  legally  be  corrected  by  an  interlineation  by  the  judge-advocate, 
as  by  the  words  "at  hard  labor"  interlined  in  the  sentence.  Nor  can  it  legally  be 
corrected  by  a  statement  on  the  margin  of  a  page,  signed  by  the  judge  advocate. 
(Ibid.,  par.  15.) 

Paragraph  955,  Army  Regulations  of  1895,  prescribes  that  the  officer  who  passes  upon 
the  sentence  of  a  court-martial  "shall  state  at  the  end  of  the  proceedings  in  each  case 
his  decision  and  orders  thereon."  Held  that  this  provision  was  directory  merely, 
and  that  it  was  not  essential  to  the  validity  of  the  proceedings  that  the  action  of  the 
President  or  commander  should  be  indorsed  upon  or  attached  to  the  record,  but  was 
sufficient,  to  give  effect  to  a  sentence,  that  the  approval  should  appear  in  a  separate 
official  order.  (Ibid.,  par.  16.) 

Held  that  the  destruction,  by  fire  or  other  casualty,  of  the  record  of  the  trial,  con- 
viction, and  sentence  of  a  deserter,  before  action  could  be  taken  upon  the  same,  was 
of  similar  effect  in  law  to  an  acquittal,  and  relieved  the  deserter  from  the  forfeiture 
of  pay  due  at  the  date  of  his  desertion.  (Ibid.,  par.  17.) 

Where  there  have  been  two  or  more  judge-advocates  successively  detailed  in  the 
course  of  a  trial,  the  one  who  is  acting  at  the  close  is  the  one  (and  the  only  one) 
required  to  authenticate  the  proceedings  by  his  signature.  (Ibid.,  p.  461,  par.  22.) 

1  This  term  is  employed  in  military  parlance  to  designate  the  officer  whose  prov- 
ince and  duty  it  is  to  take  action  upon— approve  or  disapprove,  etc.— the  proceedings 
of  a  court  martial  after  the  same  are  terminated,  and  when  the  record  is  transmitted 
to  him  for  such  action.  This  officer  is  ordinarily  the  commander  who  has  convened 
the  court.  In  his  absence,  however,  or  where  the  command  has  been  otherwise 
changed,  his  successor  in  command,  or,  in  the  language  of  articles  104  and  109,  "  the 
officer  commanding  for  the  time  being,"  is  invested  (by  those  articles)  with  the  same 
authority  to  pass  upon  the  proceedings  and  order  the  execution  of  the  sentence  in  a 
case  of  conviction.  (Dig.  Opih.  J.  A.  Gen.,  670,  par.  1.) 

In  cases,  however,  of  sentences  of  dismissal  and  of  death,  imposed  in  time  of  peace, 
and  of  some  death  sentences  adjudged  in  time  of  war,  as  also  of  all  sentences,  "re- 
specting general  officers,"  while  the  convening  officer  (or  his  successor)  is  the 
original  reviewing  authority,  with  the  same  power  to  approve  or  disapprove  as  in 
other  cases,  yet,  inasmuch  asit  is  prescribed  by  articles  105,  106, 108,  and  109  that  the 
sentence  shall  not  be  executed  without  the  confirmation  of  the  President,  the  latter 
becomes  in  these  cases  the  final  reviewing  officer,  when,  the  sentence  having  been 
approved  by  the  commander  (for,  if  disapproved  by  him,  there  is  nothing  left  to  be 
acted  upon  by  the  superior),  the  record  is  transmitted  to  him  for  his  action.  A  sim- 
ilar division  of  the  reviewing  function  exists  in  cases  in  which  sentences  are  ap- 
proved, but  the  execution  of  the  same  is  suspended,  and  the  question  of  their 
execution  referred  to  the  President,  under  article  111.  The  same  function  is  also 
shared  between  inferior  and  superior  commanders,  under  article  107,  in  cases  in 
which  sentences  are  imposed  by  division  or  separate  brigade  courts.  So,  under  arti- 
cle 110,  in  cases  of  sentences  adjudged  by  field  officers'  courts  in  time  of  war. 

Where  a  general  court-martial  is  convened  directly  by  the  President,  as  Com- 
mander in  chief,  he  is,  of  course,  both  the  original  and  final  reviewing  authority. 
(Ibid.)  See,  also,  in  connection,  with  the  review  of  proceedings,  pp.  66-69,  MANUAL 
FOE  COURTS-MARTIAL. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  503 

officer  ordering  the  court,  or  by  the  officer  commanding  for 
the  time  being.1    One  hundred  and  fourth  Article  of  War. 

1  While  approval  gives  life  and  operation  to  proceedings  or  sentence,  disapproval, 
on  the  other  hand,  quite  nullifies  the  same.  A  disapproval  of  the  proceedings  of  a 
court-martial  by  the  legal  reviewing  authority  is  not  a  mere  expression  of  disappro- 
bation, but  a  final,  determinate  act,  putting  an  end  to  such  proceedings  in  the  par- 
ticular case,  and  rendering  them  entirely  nugatory  and  inoperative;  and  the  legal 
effect  of  a  disapproval  is  the  same  whether  or  not  the  officer  disapproving  is  author- 
ized finally  to  confirm  the  sentence.  But  to  be  thus  operative  a  disapproval  should 
be  express.  As  frequently  remarked  in  the  opinions  of  the  J  udge-Advocate  General, 
the  mere  absence  of  an  approval  is  not  a  disapproval,  nor  can  a  mere  reference  of  the 
proceedings  to  a  superior  without  words  of  approval  operate  as  a  disapproval  of  the 
proceedings  or  sentence,  (a)  The  effect  of  the  disapproval,  wholly,  of  a  conviction 
or  sentence  is  not  merely  to  annul  the  same  as  such,  but  also  to  prevent  the  accruing 
of  any  disability,  forfeiture,  etc.,  which  would  have  been  incidental  upon  an  ap- 
proval, (b)  A  disapproval  of  a  conviction  of  a  particular  offense  also  operates  to 
nullify  the  conviction  of  any  lesser  included  offense,  involved  in  the  conviction  of 
the  specific  offense  charged. 

Where  the  original  reviewing  officer  disapproves  a  sentence,  to  the  execution  of 
which  the  confirmation  of  superior  authority  is  made  requisite  by  the  code,  as 
where  (in  time  of  peace)  the  department  commander  who  has  convened  the  court, 
in  the  case  of  an  officer,  disapproves  a  sentence  of  dismissal  adjudged  thereby,  the 
sentence  being  nullified  in  law,  there  remains  nothing  for  the  superior  authority 
to  act  upon,  and  to  transmit  the  proceedings  to  him  for  action  will  be  improper  and 
unauthorized. 

A  reviewing  officer  can  not  disapprove  a  sentence  and  then  proceed  to  mitigate  or 
commute  the  punishment,  since,  upon  the  disapproval,  there  is  nothing  left  in  the 
case  upon  which  any  such  action  can  be  based. 

It  is  quite  immaterial  to  the  legal  effect  of  a  disapproval  whether  any  reasons  are 
given  therefor,  or  whether  the  reasons  given  are  well  founded  in  fact  or  sufficient  in 
law.  (Dig.  Opin.  J.  A.  Gen.,  671,  par.  2.) 

The  authority  of  a  military  commander  as  reviewing  officer  is  limited  to  taking 
action  upon  the  proceedings  and  sentence  (if  any),  by  approving  or  disapproving  the 
same  (in  whole  or  in  part),  and  directing  the  execution  of  the  sentence,  and  to  the 
incidental  function,  as  conferred  by  article  112,  of  pardoning  or  mitigating  the  pun- 
ishments which  have  been  approved  by  him.  Action  not  included  within  these 
powers  he  is  not  authorized  to  take.  Thus,  he  can  not  himself  correct  the  record  of  the 
court  by  striking  out  any  part  of  the  finding  or  sentence,  or  otherwise,  nor  can  he  in 
general  change  the  order  in  which  different  penalties  are  adjudged  by  the  court  to  be 
suffered,  nor  can  he  add  to  the  punishment  imposed  by  the  court,  though  deemed  by 
him  quite  inadequate  to  the  offense.  A  reviewing  officer,  however,  may,  in  general, 
specify  the  reasons  for  the  action  taken  by  him,  without  transcending  his  authority. 
Thus,  where  a  department  commander  disapproved  a  sentence  as  inadequate,  and  in 
stating  his  grounds  for  so  doing  commented  unfavorably  upon  the  conduct  of  the 
accused  as  indicated  by  the  evidence,  held  that  such  comments  were  a  legitimate 
explanation  of  the  action  taken,  and  did  not  constitute  an  adding  to  the  punishment. 
(Ibid.,  672,  par.  3.) 

Where  the  reviewing  officer  deems  that  the  proceedings  of  the  court  are  in  any 
material  particular  erroneous  or  ill  advised,  his  proper  course  in  general  will  be  to 
reconvene  the  court  for  the  purpose  of  having  the  defect  corrected,  at  the  same  time 
furnishing  it  with  the  grounds  of  his  opinion.  Thus,  if  he  regards  the  sentence  in- 
adequate, he  should,  in  reassembling  the  court  for  a  revision  of  the  same,  state  the 
reasons  why  he  considers  it  to  be  disproportionate  to  the  amount  of  criminality  in- 
volved in  the  offense.  But  although  he  can  not  compel  the  court  to  adopt  his  views 
in  regard  to  the  supposed  defect,  he  may,  in  a  proper  case,  express  his  formal  dis- 


pu  being  again  reassembled  to  consider  further  grounds  presented  by  the  review- 
ing commander  for  the  infliction  of  a  severer  penalty,  again  declined  to  increase 
the  punishment,  held  that  it  was  within  the  authority  of  the  reviewing  officer,  and 
would  be  no  more  than  proper  and  dignified  for  him,  in  taking  final  action  upon  the 


case,  to  reflect  upon  the  refusal  of  the  court  as  ill  judged  and  as  having  the  effect 
to  impair  the  discipline  and  prejudice  the  interests  of  the  military  service.  (Ibid., 
673,  par.  4.) 

In  passing  upon  the  findings  and  sentence  of  a  court-martial,  the  reviewing  officer 
will  properly  attach  special  weight  to  its  conclusions  where  the  testimony  has  been 
of  a  conflicting  character.  This  for  the  reason  that,  having  the  witnesses  before  it 
in  person,  the  court  was  qualified  to  judge,  from  their  manner  in  connection  with 
their  statements,  as  to  the  proper  measure  of  credibility  to  be  attached  to  them 
individually.  (c)  (Ibid.,  674,  par.  5.) 

The  reviewing  authority  should  properly  authenticate  the  action  taken  by  him  in 
any  case  by  subscribing  in  his  own  hand'  (adding  his  rank  and  command,  as  indi- 

ct See  16  Opin.  Att.  Gen.,  312,  where  it  is  remarked  that  it  is  not  a  legal  disapproval 
of  a  conviction  or  sentence  for  the  original  reviewing  officer,  in  forwarding  the  pro- 
ceedings for  the  action  of  superior  authority,  to  indorse  upon  the  same  an  opinion  to 
the  effect  that  the  finding  is  not  sustained  by  the  evidence. 

6  A  disapproval  of  a  sentence  by  the  proper  reviewing  authority  is  "tantamount 
to  an  acquittal  by  the  court."  (13  Opin.  Att.  Gen.,  460.) 

cSee  the  early  case  of  Captain  Weisner,  Am.  Archiv.,  5th  series,  vol.  2,  p.  895. 
So  civil  courts  will  rarely  interfere,  except  in  cases  of  clear  injustice,  with  verdicts 
of  furies  which  have  turned  upon  the  credibility  of  witnesses.  Wright  v.  State,  34 
Ga.,  110;  Whitten  v.  State,  47  ibid.,  297. 


504  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

confirmation     1315.  Xo  sentence  of  a  court-martial,  inflicting  the  pun- 

of    death    sen-  ,         ,      ,,    ,  .     .,    .     .  ..  ,.,  ., 

tence.  ishment  of  death,  shall  be  carried  into  execution  until  it 


c.  shall  have  been  confirmed  by  the  President;  except  in  the 
598;  Mar^ise?,'  cases  of  persons  convicted,  in  time  of  war,  as  spies,  muti- 
7355'  j'uiVsi,  ISM,'  neers,  deserters,  or  murderers,  and  in  the  cases  of  guerilla 
iv-13>  P'  marauders,  convicted,  in  time  of  war,  of  robbery,  burglary, 
arson,  rape,  assault  with  intent  to  commit  rape,  or  of  viola- 
tion of  the  laws  and  customs  of  war;  and  in  such  excepted 

eating  his  legal  authority  to  act)  the  official  statement  of  the  same  as  written  in  or 
upon  the  record.  Impressing  the  signature  by  means  of  a  stamp  is  not  favored. 
(Ibid.,  par.  6.) 

Action  taken  by  a  reviewing  officer  upon  the  proceedings  and  sentence  of  a  court- 
martial  may  be  recalled  and  modified  before  it  is  published  and  the  party  to  be  af- 
fected is  duly  notified  of  the  same.  After  such  notice  the  action  is  beyond  recall. 
The  power  of  remission,  indeed,  may  be  exercised  so  long  as  any  part  of  the  punish- 
ment imposed  remains  unexecuted".  But  when  the  final  approval  of  the  sentence 
(or  other  action  taken)  has  been  once  officially  communicated  to  the  accused,  the 
function  and  authority  of  the  reviewing  authority  as  such  over  and  respecting  the 
same  is  exhausted  and  can  not  be  revived.  An  approval  can  not  then  bo  substi- 
tuted for  a  disapproval,  or  vice  versa.  (Ibid.,  par.  8.) 

A  disapproval  of  a  finding  by  the  proper  reviewing  authority  has  the  same  legal 
effect  as  an  acquittal,  and  the  soldier  can  not  be  made  to  suffer  any  of  the  legal  con- 
sequences of  a  conviction.  (See  paragraph  2,  ante.)  (Ibid.,  675,  par.  9.) 

Held  a  good  ground  for  the  disapproval  of  a  sentence  that  the  court  denied  the 
request  of  the  accused  to  have  summoned  a  clearly  material  and  important  witness, 
whose  testimony  would  not  have  been  merely  cumulative.  (Ibid.,  par.  10.) 

It  is  beyond  the  power  of  the  reviewing  officer  to  change,  by  his  own  action,  a  find- 
ing. Thus  where,  in  a  case  of  conviction  of  desertion,  the  reviewing  authority 
approved  "so  much  only  of  the  finding  of  guilty  of  desertion  as  convicted  theaccused 
of  absence  without  leave,"  held  that  he  thus  substituted  a  finding  of  his  own  for  that 
of  the  court,  and  that  his  action  was  unauthorized.  (Ibid.,  par.  11.) 

It  is  within  the  authority  of  a  department  commander,  as  reviewing  officer,  in  a 
case  in  which  a  soldier  of  his  command  has  been  sentenced  to  confinement  in  a  peni- 
tentiary, to  designate  a  particular  penitentiary  within  such  command  as  the  place  of 
confinement.  (Ibid.,  par.  12.) 

It  is  an  established  principle  that  when  the  final  action  of  the  reviewing  officer 
has  been  published  in  orders  to  the  command  and  notified  to  the  accused,  his  power 
of  approval  and  disapproval  in  the  case  is  exhausted,  and  his  action  can  not  be  recalled 
or  modified.  Where  a  department  commander  applied  to  the  War  Department  for 
the  return  of  the  proceedings  of  a  case  in  order  that  he  might  modify  his  action 


A  sentence  to  forfeit  certain  pay  was  approved,  and  such  approval  promulgated  in 
orders  of  February  18, 1865.  On  March  10  following,  the  reviewing  officer  ' '  reconsid- 
ered "  his  action  and  by  another  order  disapproved  the  sentence,  and  this  order  was 
also  promulgated.  Held  that  the  latter  order  was  of  no  effect.  The  first  order  exe- 
cuted the  forfeiture,  making  the  amount  forfeited  public  money,  and  exhausted  the 
power  of  the  reviewing  authority.  (Ibid.,  676,  par.  14.) 

But  where,  after  the  reviewing  commander  had  approved  a  sentence  in  general 
orders,  and  the  court  had  been  dissolved,  it  was  discovered  that  there  was  a  fatal 
defect  in  the  proceedings  in  that  they  did  not  show  that  the  court  or  judge-advocate 
had  been  sworn  in  the  case,  held  that  the  commander  would  properly  issue  a  supple- 
mental order  declaring  the  proceedings  a  nullity  an'd  the  original  order  inoperative 
and  withdrawn  on  account  of  the  defect.  (Ibid.,  par.  15.) 

Where  the  convening  commander  dissolves  a  court  pending  a  trial,  his  power  as  to 
that  court  is  exhausted  and  he  can  not  revive  it  as  such.  He  may  reconvene  the 
same  members  as  a  court-martial,  but  it  will  be  another  and  distinct  tribunal.  (Ibid., 
par.  16.) 

In  acting  upon  the  proceedings  of  a  court-martial,  the  legal  reviewing  officer  acts 
partly  in  a  judicial  and  partly  in  a  ministerial  capacity.  He  "decides"  and 
"orders,"  and  the  due  exercise  of  his  proper  functions  can  not  be  revised  by  supe- 
rior military  authority.  Thus  held  that  a  reviewing  officer  who  had  duly  acted  upon 
a  sentence  and  promulgated  his  action  in  orders  could  not  be  required  by  a  higher 
commander,  or  by  the  Secretary  of  War,  to  revoke  such  action.  If  the  sentence  be 
deemed  unwarranted  or  excessive,  relief  may  be  extended  through  the  power  of 
pardon  or  remission.  (Ibid.,  par.  17.) 

This  article  is  properly  to  be  complied  with  by  an  approval  of  the  sentence  (where 
the  same  is  approved  in  fact)  by  "the  officer  ordering  the  court,"  etc.,  although— as 
in  a  case  of  a  sentence  of  dismissal  in  time  of  peace— he  may  not  be  empowered 
finally  to  confirm  and  give  effect  to  the  sentence.  His  approval  is  required  as  show- 
ing that  ho  d,oes  not,  as  he  is  authorized  to  do,  disapprove.  (Ibid.,  126,  par.  1.) 

±ne  approval  of  the  sentence  indicated  by  this  article  should  properly  be  of  a 
formal  character.  An  indorsement,  signed  by  the  commander,  of  the  single  word 

approved  —a  lorm  not  unfrequently  employed  during  the  late  war —though  strictly 
sufficient  in  law,  is  irregular  and  objectionable.  So,  held  that  a  mere  statement, 
written  in  or  upon  the  proceedings,  in  transmitting  them  to  the  President,  that  the 
record  was  '  forwarded  "  for  the  action  of  superior  authority,  was  insufficient  as  not 
implying  the  requisite  approval  according  to  the  article.  And  similarly  held  of  a 
m^rre2r.ecommen datlon  th»t  the  proceedings  be  approved  by  such  authority.  (Ibid., 

A  military  commander  can  not,  of  course,  delegate  to  an  inferior  or  other  officer  hia 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  505 

cases  the  sentence  of  death  may  be  carried  into  execution 
upon  confirmation  by  the  commanding  general  in  the  field, 
or  the  commander  of  the  department,  as  the  case  may  be. 
One  hundred  and  fifth  Article  of  War. 

1316.  In  time  of  peace  no  sentence  of  a  court-martial,    confirmation 
directing  the  dismissal  of  an  officer,  shall  be  carried  into  exe- 


cution,  until  it  shall  have  been  confirmed  by  the  President.1  War 

One  hundred  and  sixth  Article  of  War. 


function  as  reviewing  authority  of  proceedings  or  sentence  of  a  court-martial,  as 
conferred  by  the  one  hundred  and  fourth  or  one  hundred  and  ninth  article  of  war  or 
other  statute.  Nor  can  he,  regularly,  authorize  a  staff  or  other  officer  to  write  and 
subscribe  for  him  the  action,  by  way  of  approval,  disapproval,  etc.,  which  he  has 
decided  to  take  upon  such  proceedings.  An  approval  purporting  to  be  subscribed 
by  the  commander,  "by"  his  staff  judge-advocate  or  assistant  adjutant-general, 
would  be  open  to  question  and  quite  irregular,  as  would  also  be  any  action  sub- 
scribed by  such  an  officer  purporting  to  be  taken  ''in  the  absence  and  by  the  direc- 
tion of"  the  commander.  (Ibid.,  674,  par.  7.) 

Held  that  a  department  commander  could  not  legally  depute  a  staffer  other  officer 
to  act  for  him,  while  absent  from  his  headquarters  on  an  expedition  against  Indians, 
in  approving,  etc.,  the  sentences  of  courts-martial  previously  duly  convened  by  him. 
(Ibid.,  126,  par.  4.) 

The  "officer  commanding  for  the  time  being,''  indicated  in  this  article,  is  an  officer 
who  has  succeeded  to  the  command  of  the  officer  who  convened  the  court,  as  where 
the  latter  has  been  regularly  relieved  and  another  officer  assigned  to  the  command, 
or  where  the  command  of  the  convening  officer  has  been  discontinued  and  merged 
in  a  larger  or  other  command,  at  some  time  before  the  proceedings  of  the  court  are 
completed  and  require  to  be  acted  upon  Thus  where,  under  the  circumstances,  a 
separate  brigade  has  ceased  to  exist  as  a  distinctive  organization  and  been  merged  in 
a  division,  or  a  division  has  been  similarly  merged  in  an  army  or  department,  the 
commander  of  the  division  in  the  one  case,  and  of  the  army  or  department  in  the 
other,  is  "  the  officer  commanding  for  the  time  being."  in  the  sense  of  the  article. 
So  where,  before  the  proceedings  of  a  garrison  court  convened  by  a  post  commander 
were  completed,  the  post  command  had  ceased  to  exist  and  the  command  become 
distributed  in  the  department,  held  that  the  department  commander,  as  the  legal 
successor  of  the  post  commander,  was  the  proper  authority  to  approve  the  sentence 
under  this  article.  (Ibid.,  127,  par.  5.) 

Where  a  department  command  was  discontinued,  without  being  transferred  to  or 


tence  of  a  court  which  had  been  ordered  by  the  department  commander,  but  whoso 
judgment  had  not  been  completed  at  the  time  of  the  discontinuance  of  the  command. 
(Ibid.,  par.  6.) 

The  ''  officer  commanding  for  the  time  being  "  must,  to  legally  act,  have  the  neces- 
sary qualifications.  Thus,  where  the  sentence  is  one  of  a  general  court-martial,  this 
officer  must  have  the  same  rank  and  status  as  the  convening  officer  must  have  had 
under  the  seventy -second  article,  i.  e.,  he  must  be  either  a  general  officer  commanding 
the  army,  division,  or  department,  or  a  colonel  commanding  the  department.  (Ibid., 
par.  7.) 

1  The  article  does  not  require  that  the  confirmation  of  the  sentence  shall  be  signed 
by  the  President,  nor  does  it  prescribe  any  form  in  which  the  confirmation  shall  be 
declared.  Held,  therefore,  that  a  written  approval  of  a  sentence  of  dismissal  authen- 
ticated by  the  signature  of  the  Secretary  of  War,  or  expressed  to  be  by  his  order, 
was  a  sufficient  confirmation  within  the  article;  the  case  being  deemed  to  be  gov- 
erned by  the  well-established  principle  that  where,  to  give  effect  to  an  Executive 
proceeding,  the  personal  signature  of  the  President  is  not  made  essential  by  law, 
that  of  the  head  of  the  department  to  which  the  subject  belongs  shall  be  sufficient 
for  the  purpose;  the  assent  of  the  President  to  his  order  or  direction  being  presumed, 
and  his  act  being  deemed  in  law  the  act  of  the  President  whom  he  represents. (a) 
(Dig.  Opin.  J.  A.  Gen.,  128,  par.  2.) 

The  word  "approved,"  employed  by  the  President  in  passing  upon  a  sentence  of 
dismissal,  held  to  be  substantially  equivalent  to  "confirmed,"  the  word  used  in  the 
article.  In  practice  the  two  words  are  used  indifferently  in  this  connection.  (Ibid., 
par.  1.) 

This  subject  has  been  more  recently  considered  by  the  United  Stales  Supreme 
Court  in  a  succession  of  cases  (Runkle  v.  TJ.  S.,  122  TJ.  S.,  543 ;  IT.  S.  v.  Page,  137 
U.S.,  673;  U.  S.  v.  Fletcher,  148  U.  S.,  84),  the  effect  of  which  is  that  a  statement  of 
approval  of  a  sentence  of  dismissal,  authenticated  by  the  Secretary  of  War,  is 
legally  sufficient,  provided  that  it  appear,  by  clear  presumption  therefrom,  that  the 
proceedings  have  actually  been  submitted  to  the  President. 

In  an  opinion  of  the  Attorney-General  of  April  1,  1879  (16  Opins.,  298),  it  was  held 
that  a  confirmation  of  a  sentence  of  dismissal  of  an  officer,  though  irregularly  and 
unduly  authenticated,  would  be  ratified  by  an  appointment  by  the  President  of 
another  officer  to  fill  the  supposed  vacancy,  and  that  the  appointment  thus  made 
would  be  valid  and  operative. 

a  This  view  has  been  sustained  by  an  opinion  of  the  Attorney-General  of  June  6, 
1877  (15  Opins.,  290),  and  by  a  report  of  the  Judiciary  Committee  of  the  Senate  of 
March  3,  1879,  report  No.  868,  Forty -fifth  Congress,  third  session.  (From  this  report, 
indeed,  two  members  of  the  committee  dissented  in  a  subsequent  report  of  April  7, 
1879,  Mis,  Doc.  No.  21,  Forty-sixth  Congress,  first  session.) 


506  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

.  No  sentence  of  a  court-martial  appointed  by  the 


or  brigade  commander  of  a  division  or  of  a  separate  brigade  of  troops. 

commanders.  . 

Dec,  24,  1861,0.  directing  the  dismissal  of  an  officer,  shall  be  carried  into 

'  167  Art.  war.  execution  until  it  shall  have  been  confirmed  by  the  general 

commanding  the  army  in  the  field  to  which  the  division  or 

brigade  belongs.     One  hundred  and  seventh  Article  of  War. 

The  same,  sen-     1318.  No  sentence  of  a  court-martial,  either  in  time  of 

tences  respecting 


gei08aArt  war   Peace  or  *n  ^me  °^  war>  respecting  a  general  officer,  shall 

be  carried  into  execution,  until  it  shall  have  been  confirmed 

by  the  President.     One  hundred  and  eighth  Article  of  War. 

The  same,  con-     1319.  All  sentences  of  a  court-martial  may  be  confirmed 

oer  ord  e  rVn  g  and  carried  into  execution  by  the  officer  ordering  the  court, 

c°io9Art.war.  or  by  the  officer  commanding  for  the  time  being,  where 

confirmation  by  the  President,  or  by  the  commanding  gen- 

eral in  the  field,  or  commander  of  the  department,  is  not 

required  by  these  articles.     One  hundred  and  ninth  Article 

of  War. 

Suspension  of     1320.  Any  officer  who  has  authority  to  carry  into  execu- 

senteuces     of 

death    or    dis-  tion  the  sentence  of  death,  or  of  dismissal  of  an  officer. 

missal     pending  .  ' 

Executive  ac-  may  suspend  the  same  until  the  pleasure  of  the  President 

111  Art.  wa*.  shall  be  known  $  and,  in  such  case,  he  shall  immediately 

transmit  to  the  President  a  copy  of  the  order  of  suspension, 
together  with  a  copy  of  the  proceedings  of  the  court.1     One 
hundred  and  eleventh  Article  of  War. 
Pardon  and     1321.  Every  officer  who  is  authorized  to  order  a  general 

mitigation  of  . 

punishment.       court-martial  shall  have  power  to  pardon  or  mitigate  any 
201  ,V  ?,  v.  12,'p!  punishment  adjudged  by  it,  except  the  punishment  of  death 

112  Art.  War.  or  of  dismissal  of  an  officer.    Every  officer  commanding  a 

regiment  or  garrison  in  which  a  regimental  or  garrison 
court-martial  may  be  held,  shall  have  power  to  pardon  or 
mitigate  any  punishment  which  such  court  may  adjudge.2 
One  hundred  and  twelfth  Article  of  War. 

1  An  officer  suspending  the  execution  of  a  sentence  for  the  action  of  the  President 
under  this  article  should  first  formally  approve  the  same.  Simply  to  forward  the 
proceedings,  stating  that  the  sentence  has  been  suspended,  is  incomplete  and  irregu- 
lar. If  the  commander  disapproves  the  sentence,  he  can  not,  of  course,  suspend  and 
transmit  under  this  article,  since  there  remains  nothing  for  the  President  to  act 
upon.  (Dig.  Opin.  J.  A.  Gen.,  129,  par.  1.) 

Where  a  case  i&  submitted  to  the  President  for  his  action  under  this  article,  he 
may  approve  or  disapprove  the  sentence  in  whole  or  in  part,  and,  if  approving,  may 
exercise  the  power  of  remission  or  mitigation.  (Ibid.,  par.  2.) 

2The  power  to  remit  or  commute  (see  paragraph  5,  post)  sentences  of  death  and 
dismissal  is  reserved  by  this  article  for  the  President.  A  military  commander  can 
not  exercise  such  power,  even  where,  in  time  of  war,  he  is  authorized  to  approve  and 
execute  the  sentence.  He  may  then,  however,  if  he  thinks  that  the  sentence  should 
be  remitted  or  commuted,  suspend  its  execution  for  the  action  of  the  President 
(with  a  recommendation  to  clemency;  under  the  preceding  article,  (a)  (Ibid.,  p.  129, 
par.  1.) 

A  military  commander  vested  with  the  power  of  pardon  or  mitigation  under  this 
article  is  not  authorized  to  delegate  the  same  to  an  inferior.  Thus  held  that  a  de- 
partment commander  could  not  legally  authorize  a  post  commander  to  remit  in  part, 
upon  good  behavior,  the  punishment  of  a  soldier  under  sentence  at  the  post  of  the 
latter,  who  had  been  convicted  by  a  general  court,  convened,  and  whose  proceedings 
had  been  acted  upon,  by  the  former.  (Ibid.,  130,  par.  2.) 

A  punishment  can  not  be  pardoned  or  mitigated  under  this  article  where  it  has 

o  See  6  Opiii.  Att.  Gen.,  124,  125. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  507 

1322.  Every  party  tried  by  a  general  court-martial  shall, 
upon  demand  thereof,  made  by  himself  or  by  any  person  Ord 

been  once  duly  executed.    Where,  however,  a  sentence  has  been  executed  only  in 
part,  it  may  bo  remitted  as  to  the  portion  remaining  unexecuted.    (Ibid.,  par.  3.) 

The  pardoning  power  here  given  is  not  limited  in  its  exercise  to  the  moment  of  the 
approving  of  the  sentence,  but  may  be  employed  as  long  as  there  remains  any 
material  for  its  exercise.  Under  this  article,  as  interpreted  by  the  usage  of  the 
service,  a  department  (or  army)  commander  may  remit  at  any  time,  in  his  discretion, 
lor  any  cause  deemed  by  him  to  be  sufficient,  the  unexecuted  portion  of  the  sentence 

a  court-martial 


convened  by  him  or  by  a  predecessor  in  the  command.     (Ibid.,  130,  par.  4.) 

The  reviewing  authority,  in  approving  the  punishment  adjudged  by  the  court  and 
ordering  its  enforcement,  is  authorized,  if  he  deems  it  top  severe,  to  graduate  it  to 
the  proper  measure  by  reducing  it  in  quantity  or  quality,  without  changing  its 
species;  this  is  mitigation,  (a)  Imprisonment,  fine,  forfeiture  of  pay,  and  suspen- 
sion are  punishments  capable  of  mitigation.  As  an  instance  of  a  mitigation  both 
in  quantity  and  quality,  held  that  a  sentence  of  imprisonment  for  three  years  in  a 
penitentiary  was  mitigable  to  an  imprisonment  for  two  years  in  a  military  prison. 
(Ibid.,  131,  par.  5.) 

Held  that  it  was  not  a  due  exercise  of  the  power  given  by  this  article,  but  irregular 
and  unauthorized,  for  a  post  commander  to  suspend  the  execution  of  the  sentence 
of  a  garrison  court  convened  by  him  during  good  behavior  on  the  part  of  the  soldiers 
sentenced.  (Ibid.,  par.  6.) 

Held  that  a  reviewing  officer  other  than  the  President  was  not  empowered  by  this 
article  to  commute  a  punishment;  that  the  "pardon  "  here  specified  was  remission, 
whicn,  unlike  the  pardoning  power  vested  in  the  President,  did  not  include  com- 
mutation or  conditional  pardon.  So,  held  that  a  reviewing  commander  was  not 
authorized  to  commute  the  punishment  of  dishonorable  discharge,  and  that,  as  such 
punishment  was  not  susceptible  of  mitigation,  it  could  not  legally  be  reduced  under 
this  article.  (Ibid.,  par.  7.) 

The  substitution  of  the  punishment  of  confinement  for  that  of  dishonorable  dis- 
charge, imposed  by  sentence  of  court-martial,  would  not,  of  course,  be  authorized  by 
way  of  mitigation  (which  can  not  change  the  nature  of  the  punishment),  but  maybe 
affected  by  a  commutation  of  the  sentence  by  the  President,  accepted  by  the  soldier. 
(See  the  action  of  the  President  in  the  case  of  Private  Hayes,  Fifth  Artillery,  in 
G.  C.  M.  0. 58  of  1888.)  (Ibid.,  par.  8.) 

Where  a  prisoner  is  serving  out  a  sentence  of  imprisonment  at  a  military  prison 
or  place  of  confinement  within  the  command  of  the  officer  who  approved  the  proceed- 
ings, such  officer  (or  his  successor  in  the  command)  may,  under  this  article,  remit  at 
any  time  the  unexpired  portion  of  the  pending  confinement,  (b)  although  the  punish- 
ment of  dishonorable  discharge,  imposed  by  the  same  sentence,  may  meanwhile  have 
been  duly  executed.  (Ibid.,  par.  9.) 

A  soldier  was  sentenced  to  be  confined  for  a  term,  and  at  the  end  of  such  term  to  be 
dishonorably  discharged.  At  the  end  of  the  term  he  was  at  once  restored  to  duty  and 
continued  on  duty.  Held  that  such  restoration  operated  as  a  constructive  pardon  and 
remitted  the  unexecuted  part  of  the  sentence,  to  wit,  the  punishment  of  dishonorable 
discharge,  (c)  (Ibid.,  132,  par.  10.) 
lie 


the  latter  will  be  equally  invalid  and  inoperative  with  the  original  punishment. 
(Ibid.,  par.  11.) 

A  substitution,  for  a  punishment  of  dishonorable  discharge  with  loss  of  all  pay  and 
allowances  due  and  to  become  due,  of  a  punishment  of  confinement  at  hard  labor  at 
the  post  for  one  year,  with  forfeiture  of  $10  per  month  for  the  same  period,  held  not 
a  legitimate  mitigation.  (Ibid.,  par.  12.) 

Where  a  sentence  of  dishonorable  discharge,  with  forfeiture  of  all  pay  and  allow- 
ances and  confinement  at  hard  labor  for  four  years,  was  mitigated  to  confinement 
for  one  year,  with  forfeiture  of  $10  per  month  for  the  same  period,  held  that  the  same 
was  regular  and  legal  and  not  in  contravention  of  circular  No.  2  (H.  A.)  of  1885. 
(Ibid.,  132,  par.  13.) 

Dishonorable  discharge  cannot  legally  be  mitigated  to  "  discharge  without  a  char- 
acter." The  latter  is  not  a  recognized  punishment.  (Ibid.,  par.  14.) 

Where  a  sentence  consists  of  several  punishments,  the  reviewing  officer  can  not  so 
exercise  the  power  of  mitigation  as  to  exceed  in  any  instance  the  maximum  punish- 
ment established  by  law  and  orders.  Thus  he  would  not  be  authorized  by  way  of 
mitigation  to  reduce  a  confinement,  while  at  the  same  time  adding  to  a  forfeiture  so 
as  to  make  it  in  excess  of  the  maximum  forfeiture  legally  allowable  for  the  offense. 
(Ibid.,  133,  par.  19.) 

An  officer  under  a  sentence  of  suspension  for  five  years,  with  forfeiture  of  one- 
quarter  of  his  pay,  applied  to  be  allowed  to  receive  his  full  pay  for  three  months, 
the  forfeiture  imposed  by  the  sentence  for  these  months  to  be  satisfied  in  one  sum 
from  the  pay  of  the  month  next  succeeding.  Held  that  such  action — for  which  there 
was  no  precedent— would  have  to  be  taken,  if  at  all,  by  way  of  mitigation,  but  that 
the  same  would  amount  to  a  postponement  of  the  execution  (of  a.  part)  of  the  sentence, 
which  would  not  be  legitimate  mitigation.  (Compare  paragraph  951,  Army  Kegula1 
tions  of  1895.)  (Ibid.,  132,  par.  20.) 

aSeo  opinion  of  Judge- Advocate-General  published  in  G.  0.  71,  War  Department, 
1875 ;  1  Opiii.  Att.  Gen.,  327 ;  4  ibid.,  444.  (It  may  be  noted  that  these  early  opinions 
of  the  Attorney- General  inaccurately  describe  the  substitution  of  a  lesser  punish- 
ment for  a  death  sentence  as  a  mitigation,  the  proceeding  being  properly  commu- 
tation.) 

&  The  counter  opinion  of  the  Attorney-General,  in  19  Opins.,  106,  was  not  adopted 
by  the  Secretary  of  War  or  followed  in  practice,  as  is  shown  by  the  terms  of  para- 
graph 1044,  Army  Regulations  [1889]. 

c  See  6  Opin.  Att.  Gen.,  715. 


508  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

in  his  behalf,  be  entitled  to  a  copy  of  the  proceedings  and 
sentence  of  such  court.1  One  hundred  and  fourteenth  Article 
of  War. 

REGIMENTAL    COURTS-MARTIAL. 

couVtlnSniai*1  1323.  Every  officer  commanding  a  regiment  or  corps 
July?? 1862* c  sna11?  subject  to  the  provisions  of  article  eighty,  be  compe- 

201,  s.  7,  V.  12,  p.  tent  to  appoint,  for  his  own  regiment  or  corps,  courts- 
martial,  consisting  of  three  officers,  to  try  offenses  not 
capital.2  Eighty-first  Article  of  War. 

1 A  copy  of  the  proceedings  and  sentence  can  not  properly  be  furnished  under  this 
article  till  the  same  have  been  finally  acted  upon  and  such  action  has  been  promul- 
gated in  the  usual  manner.  (Dig.  Opin.  J.  A.  Gen.,  133,  par.  1.) 

A  person  applying  for  the  copy  "  in  behalf  "  of  the  accused  should  exhibit  some 
satisfactory  evidence  that  he  duly  represents  the  accused  as  his  agent,  attorney,  or 
otherwise.  Where  it  does  not  satisfactorily  appear  that  the  party  is  applying  for 
and  on  behalf  of  the  accused  he  can  not  be  furnished  with  the  copy  as  of  right  under 
the  article.  A  person  other  than  the  accused  applying  on  his  own  account  is  not 
entitled  to  the  copy.  The  fact  that  the  applicant  is  a  member  of  the  family  of  the 
accused  does  not  entitle  him  to  the  copy  in  the  absence  of  evidence  that  he  applies  at 
the  instance  or  in  behalf  of  the  accused.  A  party  applying  in  behalf  of  ' '  friends  and 
creditors  "  of  the  accused,  held  not  entitled  to  a  copy  of  the  record  of  his  trial.  So 
held  of  one  who  subscribed  his  application  merely  as  "  attorney  at  law,"  without 
showing  that  he  was  authorized  to  act  for  theaccused,  (Ibid.,  134,  par.  2.) 

Applications  for  copies  under  this  article  may  be,  and  in  practice  commonly  are, 
addressed  in  the  first  instance  to  the  Judge-Advocate-General,  who  thereupon 
furnishes  the  copy,  certified  by  him  as  correct,  at  the  expense  of  the  United  States, 
provided  the  application  is  made  by  the  accused  or  in  his  behalf.  If  not,  he  can 
furnish  the  copy  only  by  the  special  authority  of  the  Secretary  of  War.  Any  per- 
son desiring  a  copy  of  the  record  of  a  court-martial,  or  of  any  portion  of  a  record, 
who  is  not  entitled  to  be  furnished  with  the  same  by  the  terms  of  this  article,  should 
apply  therefor  to  the  Secretary  of  War,  stating  the  reason  for  his  application,  in 
order  that  it  may  appear  that  he  makes  the  same  in  good  faith  and  for  a  proper 

Surpose.  If  the  application  is  approved  by  the  Secretary,  it  will  be  referred  to  the 
udge-Advocate-General,  who  will  then  have  the  copy  prepared  and  transmitted. 
(Ibid.,  par.  3.) 

The  accused  or  other  person  entitled  under  this  article  to  be  furnished  with  a 
copy  of  a  record  of  trial  is  not  entitled  to  be  furnished  with  a  copy  of  a  report  of 
the  Judge- Advocate-General  made  upon  the  case.  To  receive  this  special  authority 
must  be  obtained  from  the  Secretary  of  War.  (Ibid.,  par.  4.) 

The  furnishing  of  a  copy  of  a  record  of  a  general  court-martial  to  a  person  other 
than  the  accused  and  not  applying  in  his  behalf  will,  as  a  general  rule,  be  author- 
ized by  the  Secretary  of  War  where  the  application  is  evidently  made  in  the  interest 
of  justice  and  the  copy  furnished  will  clearly  subserve  a  good  and  desirable  pur- 
pose. But  this  must  be  made  certainly  to  appear.  (Ibid.,  135,  par.  5.) 

It  is  only  a  party  " tried  by  a  general  court-martial"  who  is  entitled  by  the  ar- 
ticle to  the  copy.  Parties  desiring  copies  of  records  of  courts  of  inquiry,  for  use 
in  evidence  under  article  121,  or  for  other  purpose,  must  apply  to  the  Secretary 
of  War.  Such  copies,  however,  are  rarely  accorded,  except  for  use  under  article  121. 
(Ibid  ,  par.  6.) 

This  article  does  not  authorize  the  furnishing  of  a  copy  of  the  record  of  trial  to 
the  widow  of  the  accused  or  other  person  applying  after  his  decease.  (Ibid.,  par.  7.) 

The  "proceedings  and  sentence"  of  the  court,  with  a  copy  of  which  the  accused 
is  entitled  to  be  furnished  under  this  article,  does  not  include  the  action  of  the  re- 
viewing authority  as  indorsed  upon  or  attached  to  the  record  of  trial,  and  it  is  not 
the  usage  to  include  this  in  the  copy.  (Ibid.,  par.  8.) 

3  Held  that  the  Chief  of  Engineers  was  authorized  to  order  a  court  under  this 
article  for  the  trial  of  soldiers  of  the  engineer  battalion ;  the  same,  in  connection 
with  the  engineer  officers  of  the  Army,  being  deemed,  in  view  of  sections  1094, 1151, 
1154,  etc.,  of  the  Revised  Statutes,  to  constitute  a  "corps"  in  the  sense  of  the  article. 
So  held  that  the  Chief  of  Ordnance  was  authorized  to  convene  such  a  court  for  the 
trial  of  the  enlisted  men  authorized  by  section  1162,  Revised  Statutes,  to  be  enlisted 
by  him;  the  same  being  deemed  to  constitute,  with  the  ordnance  officers,  such  a 
separate  and  distinct  branch  of  the  military  establishment  as  to  come  within  the 
general  designation  of  "corps"  employed  in  the  article  So  held  that  the  Chief 
Signal  Officer,  under  the  provisions  of  the  acts  of  July  24, 1876,  June  20, 1878,  etc., 
relating  to  his  branch  of  the  service,  was  authorized  to  order  courts-martial,  as  com- 
manding a  "corps"  in  the  sense  of  this  article.  (Dig.  Opin  J.  A.  Gen. .92,  par.  1.) 

It  is  not  necessary  that  an  order  convening  a  court  under  this  (or  the  next)  article, 
in  time  of  war,  should  state  in  terms  that  it  is  not  practicable  to  detail  a  field  officer 
under  article  80.  It  is  good  practice,  however,  and  not  unusual,  to  add  a  statement 
to  this  effect.  (Ibid.,  93,  par.  2.) 

Under  paragraph  898,  Army  Regulations  of  1861,  it  devolved  upon  a  department 
commander  to  supervise  the  proceedings  of  regimental  and  garrison  courts  martial 
transmitted  to  his  headquarters,  and  if  ho  discovered  any  material  error,  defect,  or 
omission  in  a  record  or  in  the  action  taken  in  the  case  by  the  inferior  commander, 
to  return  the  proceedings  to  the  latter,  calling  his  attention  to  the  correction  deemed 
proper  to  be  made.  (This  paragraph  is  not  contained  in  the  regulations  of  1889 
or  1895.)  (Ibid.,  par.  3.)  See,  also,  MANUAL  FOB  COURTS-MARTIAL,  p.  82. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  509 

1324.  Any  soldier  who  thinks  himself  wronged  by  any    Redress  of 
officer  may  complain  to  the  commanding  officer  of  his  regi-    soAruwar. 
ment,  who  shall  summon  a  regimental  court-martial  for  the 

doing  of  justice  to  the  complainant.  Either  party  may 
appeal  from  such  regimental  court-martial  to  a  general 
court- martial  5  but  if,  upon  such  second  hearing,  the  appeal 
appears  to  be  groundless  and  vexatious,  the  party  appeal- 
ing shall  be  punished  at  the  discretion  of  said  general 
court-martial.1  Thirtieth  Article  of  War. 

FIELD  OFFICERS'  COURTS. 

1325.  In  time  of  war  a  field-officer  may  be  detailed  in    Fie  id  officers' 
every  regiment,  to  try  soldiers  thereof  for  offenses  not  cap-  c°Juiy  17,1862,  c. 
ital  5  and  no  soldier,  serving  with  his  regiment,  shall  be59s'. s< 

tried  by  a  regimental 2  garrison  court-martial  when  a  field- 
officer  of  his  regiment  may  be  so  detailed.3  Eightieth  Article 
of  War. 

1  This  article  is  not  inconsistent  with  article  83,  which  prohibits  regimental  courts 
from  trying  commissioned  officers.  It  does  not  contemplate  or  provide  for  a  trial 
of  an  officer  as  an  accused,  but  simply  an  investigation  and  adjustment  of  some 
matter  in  dispute — as  for  example,  a  question  of  accountability  for  public  property, 
of  right  to  pay  or  to  an  allowance,  of  relief  from  a  stoppage,  etc.  The  regimental 
court  does  not  really  act  as  a  court,  but  as  a  board,  and  the  "appeal"  authorized  is 
practically  from  one  board  to  another,  (a)  But  though  the  regimental  court  has  no 
power  to  find  "guilty"  or  "not  guilty,"  or  to  sentence,  it  should  come  to  some 
definite  opinion  or  conclusion,  one  sufficiently  specific  to  allow  of  Us  being  intelli- 
gently reviewed  by  the  general  court,  if  desired.  (6)  (Dig.  Opiu.  J.  A.  Gen.,  35,  par.  1.) 

The  proceeding  under  this  article,  not  being  a  trial,  is  not  affected  by  the  limita- 
tion of  the  one  hundred  and  third  article.  Due  diligence,  however,  should  be  exer- 
cised in  presenting  the  complaint,  and  a  delay  in  a  certain  case  to  do  so  for  three 
years  (not  satisfactorily  explained),  held  wholly  unreasonable  and  properly  treated 
by  the  court  as  seriously  prejudicing  the  complaint.  (Ibid.,  par.  2.) 

The  authority  to  summon  a  regimental  court  under  this  article  is  vested  in  terms 
in  the  regimental  commander.  A  department  or  other  superior  commander  can  not 
properly  exercise  such  authority,  nor  will  his  order  add  to  the  validity  or  effect  of 
the  proceeding.  (Ibid.,  par.  3.) 

The  court  can  not  take  cognizance  of  a  complaint  against  an  officer  no  longer  in 
the  service.  So,  where  a  company  commander,  having  entered  on  the  pay  rolls  an 
unauthorized  stoppage  against  a  soldier,  had  resigned,  and  the  same  stoppage  was 
thereupon  continued  by  his  successor,  held  that  the  complaint  should  be  presented 
against  the  latter.  (Ibid.,  par.  4.) 

Where  the  alleged  wrong  was  charged  upon  certain  officers'  servants,  and  it  did 
not  appear  that  their  acts  were  authorized  or  sanctioned  by  the  officers  who  em- 
ployed them,  held  that  the  complaint  was  not  one  which  could  be  taken  cognizance 
of  under  this  article.  (Ibid.,  par.  5.) 

There  are  two  manifest  and  unqualified  limitations  to  the  province  of  the  regi- 
mental court  under  this  article,  viz:  (1)  It  can  not  usurp  the  place  of  a  court  or  in- 
quiry ;  (2)  it  can  take  no  cognizance  of  matters  which  it  would  be  beyond  the  power 
of  the  regimental  commander  to  redress.  When  the  matter  is  beyond  the  reach  of 
this  commander,  it  is  beyond  the  jurisdiction  of  this  court.  If  it  involve  a  question 
of  irregular  details,  excessive  work  or  duty,  wrongful  stoppages  of  pay,  or  the  like, 
a  regimental  court  under  this  article  may  be  resorted  to  for  the  correction  of  the 
wrong.  Otherwise  when  the  case  is  one  of  a  wrong  such  as  can  be  righted  only  by 
the  punishment  of  the  officer.  (Ibid.,  36,  par.  6.) 

See  also  note  to  Thirtieth  Article  of  War. 

2The  word  "or"  omitted  from  the  roll. 

3  While  the  original  statute  (act  of  July  17, 1862,  chap.  201,  sec.  7)  providing  for  field 
officers'  courts  was  open  to  the  construction  of  authorizing  these  courts  at  all  times, 
whether  in  war  or  in  peace,  and  was  quite  generally  regarded  as  so  authorizing  the 
same,  the  law  as  reenacted  in  the  present  article,  in  the  Code  of  1874,  expressly  lim- 
its the  detailing  of  field  officers  as  courts  to  "  time  of  war."  The  field  officer's  court 
thus  became  unauthorized  from  and  after  June  22, 1874,  the  date  on  which  the  present 
article  took  effect  as  part  of  the  Ee vised  Statutes.  The  article  substitutes  the  field 
officer's  court  for  the  regimental  or  garrison  court  in  time  of  war,  in  all  cases  arising 
in  a  regiment  for  the  trial  of  which  it  is  practicable  to  detail  a  field  officer  of  the 
regiment.  (Dig.  J.  A.  Gen.,  90,  par.  1.) 

The  field  officer  will  properly  be  detailed  by  the  colonel  or  commanding  officer  of 
the  regiment,  wherever  there  is  a  field  officer  (other  than  such  commander)  on  duty 

a  See  Macomb,  sees.  193, 194 ;  G.  0. 13,  War  Department,  1843 ;  1  Opin.  Att.  Gen.,  167. 
b  See  MANUAL  FOE  COURTS-MARTIAL,  p.  89,  note.  - 

iBRAf 

OP  THE 

TTNIVERSITY 


510  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

Confirmation     1326.  No  sentence  adjudged  by  a  field-officer,  detailed  to 

of  sentences.  .     ,   .     ' 

juiy  IT,  1862,  c.  try  soldiers  of  his  regiment,  shall  be  carried  into  execution 

201,  s'.  7,  v.  12,  p.      J  ,  .        , ,       ,     .         , 

598;  July  27, 1892,  until  the  same  shall  have  been  approved  by  the  brigade  com- 
v'iiopArt.  war.  mander,  or,  in  case  there  be  no  brigade  commander,  by  the 

commanding  officer  of  the  post  or  camp.     Act  of  July  27, 

1892  (27  Stat.  L.,  278). 

GARRISON   COURTS-MARTIAL. 

Garrison     1327.  Every  officer  commanding  a  garrison,  fort,  or  other 

courts  martial.  .  *f  ... 

juiy  17, 1862,  c.  place,  where  the  troops  consist  of  different  corps,  shall, 

598 -Feb.Is,  1875,' subject  to  the  provisions  of  article  [ninety-five,]  [eighty]  be 

c>82  Irtf'^ar!8'  competent  to  appoint,  for  such  garrison  or  other  place, 

courts-martial,  consisting  of  three  officers,  to  try  offenses 

not  capital.1     Eighty-second  Article  of  War. 

with  it.  In  practice  the  major  has  generally  been  so  detailed.  Where  there  is 
present  with  the  regiment  but  a  single  field  officer,  who  is  also  the  officer  in  command, 
such  officer  can  not  properly  detail  himself  as  a  court;  the  detail  in  such  cases 
should  therefore  be  made  by  the  next  higher  commander,  as  the  brigade,  division, 
or  post  commander  in  whose  command  the  regiment  is  included.  (Ibid.,  par.  2.) 

It  is  not  necessary  that  an  order  convening  a  court  under  the  eighty -first  or  the 
eighty-second  article,  in  time  of  war,  should  state  in  terms  that  it  is  not  practicable 
to  detail  a  field  officer  under  article  80.  It  is  good  practice,  however,  and  not  unusual, 
to  add  a  statement  to  this  effect.  (Ibid  ,  93,  par.  2.) 

The  following  commanders  held  not  authorized  to  convene  a  field  officer's  court: 
A  post  commander  whose  command  does  not  include  a  regiment;  a  commanding 
officer  of  a  battalion;  a  commander  of  a  draft  rendezvous.  (Ibid.,  90,  par.  2.) 

Only  a  field  officer  of  a  regiment  can  be  detailed.  A  captain  assigned  to  duty  with 
his  regiment,  according  to  his  brevet  rank  of  major,  is  a  field  officer  for  the  time,  and 
may  be  detailed.  A  post  commander  can  not  be  detailed  as  such.  An  ordnance 
officer  (of  field  officer's  rank)  commanding  a  detachment  at  an  arsenal  can  not  be 
detailed.  (Ibid.,  91,  par.  3.) 

Where  a  regiment,  in  time  of  war,  contains  no  field  officer  eligible  for  the  detail,  a 
regimental  or  garrison  court  must  be  resorted  to.  (Ibid.,  par.  4.) 

The  field  officer  has  jurisdiction  only  to  try  soldiers  of  his  regiment.  His  juris- 
diction is  coextensive  with  the  regiment,  and  attaches  generally,  although  the  regi- 
ment for  purposes  of  service  is  separated  into  portions,  provided  all  the  portions 
are  under  the  command  of  the  convening  officer.  But  it  does  not  extend  to  a  com- 
pany or  portion  of  the  regiment  on  detached  service  in  a  separate  and  distinct 
command.  (Ibid.,  par.  5.) 

A  field  officer  detailed  as  a  court  is  not  required  to  be  sworn  as  such.     (Ibid.,  par.  6.) 

The  accused  is  not  entitled  to  challenge  the  field  officer.    (Ibid.,  92,  par.  9.) 

The  whole  duty  of  the  court  is,  in  practice,  performed  by  the  field  officer.  Xo 
judge-advocate  or  recorder  is  required  to  be,  or  has  been,  employed.  The  field  officer 
prepares  his  own  record.  (Ibid.,  par.  7.)  See,  also,  MANUAL  FOR  COURTS-MARTIAL, 
pp.  80,  81. 

The  proceedings  of  the  field  officer  are  intended  to  be  summary  in  their  character,  a 

1  It  is  not  essential  that  the  "officer  commanding"  should  be  of  the  rank  of  field 
officer.  A  commanding  officer,  though  a  captain  or  lieutenant,  may  convene  a  court- 
martial  nnder  this  article,  provided  he  has  the  required  command.  (Dig.  Opin.  J.  A. 
Gen.,  93,  par.  1.) 

A  commanding  officer  is  not  authorized  to  detail  himself,  with  two  other  officers, 
as  a  court  under  this  (or  the  preceding)  article.  An  "acting  assistant  surgeon,'  not 
being  an  officer  of  the  Army,  can  not  be  detailed  on  such  court.  (Ibid.,  par.  2.) 

The  general  term  "other  place"  is  deemed  to  be  intended  to  cover  and  include 
any  situation  or  locality  whatever— post,  station,  camp,  halting  place,  etc.— at  which 
there  may  remain  or  be,  however  temporarily,  a  separate  command  or  detachment  in 
which  different  corps  of  the  Army  are  represented,  as  indicated  in  the  next  para- 
graph. If  such  command,  so  situated,  contains  three  officers,  other  than  the  com- 
mander, available  for  service  on  court-martial,  the  commander  will  be  competent  to 
exercise  the  authority  conferred  by  this  article.  (Ibid.,  par.  3.) 

Held,  in  view  of  the  early  orders'(  b)  relating  to  the  subject  and  of  the  practice  there- 
under, that  the  presence  on  duty  with  a  garrison,  detachment,  or  other  separate  com- 
mand, at  a  fort,  arsenal,  or  other  post  or  place,  and  as  a  part  of  such  command,  of  a 
single  representative,  officer  or  soldier,  of  a  corps,  arm,  or  branch  of  the  service  other 
than  that  of  which  the  bulk  of  the  command  is  composed— as  an  officer  of  the  quarter- 
master, subsistence,  or  medical  department,  a  chaplain,  an  ordnance  sergeant  or  hos- 
pital steward,  an  officer  or  soldier  of  artillery  where  the  command  consists  of  infantry 
or  cavalry,  or  vice  versa,  etc.— might  be  deemed  sufficient  to  fix  upon  the  command 
the  character  of  one  "where  the  troops  consist  of  different  corps,"  in  the  sense  of 
this  article,  and  to  empower  the  commanding  officer  to  order  a  court-martial  under 

a  For  form  of  record,  see  MANUAL  FOR  COURTS-MARTIAL,  p.  133. 
b  The  original  order  is  G.  O.  5,  Headquarters  of  Army,  1843.    And  see  the  law  as 
announced  later  in  G.  0. 13,  Fourth  Military  District,  1867. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  511 

1328.  Regimental  and  garrison  courts-martial,  and  field-  ^"p^urta"  of 
officers  detailed  to  try  offenders,  shall  not  have  power  to  20f  Usly7":181|2  'J- 
try  capital  cases  or  commissioned  officers,  or  to  inflict  a  598*. 

80  Art.  War. 

fine  exceeding  one  month's  pay,  or  to  imprison  or  put  to 
hard  labor  any  non-commissioned  officer  or  soldier  for  a 
longer  time  than  one  month.1  Eighty-third  Article  of  War. 


THE   SUMMARY   COURT. 


1329.  That  hereafter  in  time  of  peace  all  enlisted  men         m 


COUI8 


charged  with  offenses  now  cognizable  by  a  garrison  or  reg-  ^cr°val  of  8en" 

imental  court-martial  shall,  within  twenty-four  hours  from  260ci'^  1890'  v- 

the  time  of  their  arrest,  be  brought  before  a  summary  court, 

which  shall  consist  of  the  line  officers  second  in  rank  at  the 

post  or  station  or  of  the  command  of  the  alleged  offender, 

and  at  stations  where  only  officers  of  the  staff  are  on  duty 

the  officers  second  in  rank  shall  constitute  such  court,    composition. 

who  shall  have  power  to  administer  oaths  and  to  hear  and 

determine  the  case,  and  when  satisfied  of  the  guilt  of  the 

accused  party  adjudge   the  punishment  to  be  inflicted. 

There  shall  be  a  summary  court  record-book  or  docket 

kept  at  each  military  post,  and  in  the  field  at  the  head- 

quarters of  the  command,  in  which  shall  be  entered  a 

the  same.    The  presence,  however,  with  the  command,  of  a  civil  employee  of  the 

Army  (as  an  "  acting  assistant  surgeon  ")  could  have  no  such  effect.    (Ibid.,  94,  par.  4.) 

Where,  after  a  garrison  court  had  tried  the  cases  referred  to  it,  but  before  its  pro- 

ceedings had  been  acted  upon,  the  command  of  the  post  was  devolved  upon  the  officer 

act  upon  the  proceedings;  the  case  not  being  one  in  which  the  action  of  the  depart- 
ment or  other  higher  commander  was  required  by  the  one  hundred  and  ninth  article 
of  war.  (Ibid.,  par.  5.)  See,  also,  MANUAL  FOR  COURTS-MARTIAL,  pp.  81,82. 

'Under  this  article,  field  officers'  courts  are  invested  with  the  same  jurisdiction 
and  power  of  punishment  as  regimental  and  garrison  courts.  (Ibid.,  p.  94,  par.  1.) 

Capital  offenses  (i.  e.,  offenses  capitally  punishable),  not  being  within  the  jurisdic- 
tion of  inferior  courts,  such  courts  can  not  take  cognizance  of  acts  specifically  made 
punishable  by  article  21,  however  slight  be  the  offenses  actuallv  committed,  (a) 
(Ibid.,  94,  par.  2.) 

A  sentence  forfeiting  pecuniary  allowances  in  addition  to  pay,  where  the  entire 
forfeiture  amounted  to  a  sum  greater  than  one  month's  pay,  held  not  authorized  under 
this  article.  (Ibid.,  95,  par.  3.) 

A  sentence,  adjudged  by  a  garrison  court,  of  confinement  "till  the  expiration  of 
the  term  of  service  of  a  soldier,  held  unauthorized  unless  the  soldier  had  no  more 
than  one  month  left  to  serve.  (Ibid.,  par.  4.) 

The  limitation  of  the  authority  of  inferior  courts  in  regard  to  sentences  of  impris- 
onment and  fine,  held  not  to  preclude  the  imposition  by  them  of  other  punishments 
sanctioned  by  the  usage  of  the  service;  such,  for  example,  as  reduction  to  the  ranks, 
either  alone  or  in  connection  with  those  or  one  of  those  expressly  mentioned.  (Ibid., 
par.  5.) 

The  limitations  imposed  by  the  article  have  reference,  of  course,  to  single  sentences. 
For  distinct  offenses  made  the  subject  of  different  trials,  resulting  in  separate 
sentences,  a  soldier  may  be  placed  at  one  and  the  same  time  under  several  penalties 
of  forfeiture  and  imprisonment,  or  either,  exceeding  together  the"  limit  affixed  by  the 
article  for  a  single  sentence.  (6)  (Ibid.,  par.  6.) 

While  inferior  courts  have,  equally  with  general  courts,  jurisdiction  of  all  military 
offenses  not  capital,  yet,  in  view  of  the  limitations  upon  their  authority  to  sentence, 
it  is  in  general  inexpedient  to  resort  to  them  forthe  trial  of  the  graver  offenses,  such 
as  larcenies,  aggravated  acts  of  drunkenness,  protracted  absences  without  leave, 
etc.,  a  proper  and  adequate  punishment  for  which  would  be  beyond  the  power  of 
such  tribunals.  So,  as  a  reviewing  officer  is  never  authorized  to  add  to  the  punish- 
ment imposed  by  any  court-martial,  the  more  serious  offenses  should,  where  practi- 
cable, be  referred  for  trial  to  general  courts,  which  alone  are  vested  with  a  full  discre- 
tion to  impose  punishment  in  proportion  to  the  gravity  of  the  offense.  (Ibid.,  par.  7.) 

a  G.  0.  21,  Headquarters  of  Army,  1858.  And  see  G.  0.  18,  War  Department,  1859  ; 
G.  0.  9,  Department  of  Utah,  1858,  where  the  proceedings  of  garrison.  courts,  in  cases 
of  capital  offenses  are  pronounced  void. 

b  See  G.  0.  18,  War  Department,  1859. 


512  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

record  of  all  cases  heard  and  determined  and  the  action 
had  thereon,  and  no  sentence  adjudged  by  said  summary 
court  shall  be  executed  until  it  shall  have  been  approved 
by  the  post  or  other  commander.1  Act  of  October  1,  1890 
(26  Stat.  L.,  648). 

i  The  act  of  October  1, 1890,  c.  1259  (26  Slat.  L.,  648),  substituted  the  summary  court 
for  the  regimental  or  garrison  court,  iu  time  of  peace,  much  as  the  act  of  July  17, 
1862,  substituted  for  the  latter  court  the  field  officer's  court  in  time  of  war.  (Dig. 
Opin.  J.  A.  Gen.,  724,  par.  1.)  For  authority  to  remit  or  mitigate  sentences,  not  con- 
ferred by  this  statute,  see  sec.  5  of  the  act  of  July  27, 1892  (27  Stat.  L.,  277),  paragraph 
1330,  post.  See  also  for  procedure,  etc.,  MANUAL  FOR  COORTS-MAKTIAL,  pp.  75-80. 

The  effect  of  the  provisions  of  the  act  as  to  the  personnel  of  the  court  held  to  be  that 
when  "  the  line  officer  second  in  rank  at  the  post,"  etc.,  is  the  "  accuser"  in  a  case, 
the  case  shall  be  tried  (not  by  either  the  post  commander  or  a  garrison  or  regimental 
court,  but)  by  the  post  commander  (unless  the  accused  claim  a  trial  by  such  court, 
etc.),  and  that  when  the  post  commander  is  the  accuser  the  case  shall  be  tried  by  a 
garrison  or  regimental  court.  This  construction  accords  with  the  oh.ject  of  the 
statute,  which  is  to  substitute  as  far  as  possible  the  summary  for  the  other  inferior 
courts.  Thus  a  garrison  court  (unless  specially  "requested")  is  not  legal  where 
under  the  act  the  post  commander  can  officiate  as  the  summary  court.  (Ibid.,  725, 
par.  2.) 

"Where  a  post  commander  sits  as  a  summary  court  no  approval  of  the  sentence  is 
required  by  law,  but  he  should  sign  the  sentence  and  date  his  signature,  (a)  A  cer- 
tification by  the  post  adjutant  is  unnecessary  and  irregular  and  should  not  be 
permitted.  (Ibid.,  par.  3.) 

A  staff  officer— as  a  surgeon— can  not  legally  act  as  the  summary  court  at  a  post  of 
which  the  commander  belongs  to  the  line.  (Ibid.,  par.  4.) 

Held  that  the  passed  assistant  surgeon  of  the  Navy  on  duty  at  the  Army  and  Navy 
General  Hospital  at  Hot  Springs,  Ark.,  though  the  second  officer  in  rank  at  that 
post,  could  not  legally  sit  as  a  summary  court  under  the  act  of  1890,  which  author- 
izes only  an  officer  of  the  Army  to  officiate  as  such.  (Ibid.,  par.  5.) 

The  surgeon  of  the  Army  commanding  the  Army  and  Navy  General  Hospital  at 
Hot  Springs,  Ark.,  has  a  mixed  command,  consisting  of  "  different  corps  "  in  the 
sense  of  article  82,  and  would  be  authorized  to  convene  garrison  courts  if,  in  view  of 
the  provisions  of  the  summary  court  act,  there  could  be  summary  courts  legally 
ordered  at  that  post.  But  no  summary  court  cau  be  ordered  at  such  post  unless 
there  is  on  duty  there  a  line  officer  who  is  also  second  in  rank  of  the  officers  there 
stationed.  If  the  second  in  rank  on  duty  there  is  a  medical  officer,  and  there  be  also 
on  duty  a  line  officer  or  line  officers,  there  can  bo  no  summary  court  legally  convened 
at  the  post.  Such  a  court  convened  by  such  surgeon  would  not  be  a  legal  couit 
because  the  station  would  not  be  one  wnere  "  only  officers  of  the  staff  are  on  duty." 
Where  a  summary  court  can  notlegally  be  ordered,  a  garrison  court  can  not  be  resorted 
to.  (Ibid.,  par.  6.) 

Where  the  officer  second  in  relative  rank  at  an  ordnance  post  is  an  ordnance  store- 
keeper, he  should  act  as  the  summary  court.  If,  in  the  absence  of  the  regular  post 
commander,  he  becomes  post  commander,  and  there  is  no  other  officer  of  inferior 
rank  at  the  post,  the  storekeeper  will  legally  act  as  the  court.  (Ibid.,  726,  par.  7.) 

The  provision  of  the  act  that  accused  soldiers  shall  be  brought  before  the  summary 
court  for  trial  "within  twenty-four  hours  from  the  time  of  their  arrest"  is  not  a 
statute  of  limitations  nor  jurisdictional  in  its  character,  but  directory  only — direc- 
tory upon  the  officers  whose  duty  it  is  to  bring  offenders  before  the  court.  The  pro- 
ceedings will  thus  be  legally  valid  though  the  accused  does  not  appear  for  trial 
within  the  period  specified.  So  held,  in  a  case  of  an  accused  soldier  arrested  on 
Saturday,  that  the  court  did  not,  by  not  sitting  on  Sunday,  lose  jurisdiction;  and 
therefore  that  it  is  not  necessary  that  a  summary  court  should  ever  sit  on  a  Sun- 
day, (b)  (Ibid.,  par.  10.) 

The  provision  in  the  act  in  regard  to  the  trial  being  had  with;  twenty -four  hours 
of  the  arrest  being  directory  only,  a  trial  held  after  that  time  is  entirely  valid.  Thus, 
where  a  soldier,  by  reason  of  drunkenness  or  otherwise,  is  not  in  a  condition  to  be 
tried  within  that  time,  his  trial  may  be  postponed  till  he  is  in  such  condition.  (Ibid., 
727,  par.  11.) 

Held  that  the  provision  of  the  ninety-fourth  article  of  war  relating  to  the  hours 
of  session  of  courts-martial  was  not  applicable  to  summary  courts.  (Ibid.,  par.  12.) 

The  procedure  of  the  summary  court  should  be  similar1  to  that  of  the  older  courts- 
martial.  The  charges  and  specifications  should  be  read  to  the  accused,  and  he  be 
required  to  plead  guilty  or  not  guilty,  and  the  witnesses  should  be  sworn.  But  the 
testimony  is  not  set  forth  in  the  record,  (c)  (Ibid.,  par.  13.) 

The  act  of  1890,  in  providing  that  the  trial  officer  "shall  have  power  to  administer 
oaths,"  has  reference  to  the  oaths  of  witnesses.  The  officer  himself  is  not  sworn. 
But  the  witnesses  must  be  sworn ;  and,  in  a  case  in  which  it  appeared  that  they  were 
not  in  fact  sworn,  held,  that  the  proceedings  and  sentence  were  invalidated,  and  that 
a  forfeiture  imposed  was  illegally  charged  against  the  accused,  who  should  be  cred- 
ited with  the  amount  of  the  same  on  the  next  muster  and  pay  roll.  But  the  record 
need  not  state  in  terms  that  the  witnesses  were  sworn;  it  will  be  presumed  that  the 
law  has  been  complied  with  unless  the  contrary  appears.  (Ibid.,  par.  14.) 

A  summary  court  is  not  empowered  to  issue  process  of  attachment  to  compel  the 
attendance  of  a  civilian  witness.  (Ibid.,  par.  15.) 

For  a  summary  court  to  impose  a  forfeiture  of  $10,  when  the  soldier  is  receiving 

a  Published  in  G.  0. 47  of  1894. 

b  See  circular  No.  2  (fl.  Q.  A.),  1891 ;  do.  of  1892. 

c  As  to  the  procedure  and  form  of  record  of  summary  courts,  see  G.  O.  47  of  1894; 
also  circular  No.  9  (H.  Q.  A.),  1894.  See  also  the  Manual  for  Courts-Martial,  pp.  26, 
75-80,  J09, 131,  and  132. 


THE    MILITARY    LAWS    OF    THE    UNITED   STATES.  513 

1330.  That  tlie  commanding  officers  authorized  to  approve    Power  to  remit 

or  mitigate  sen- 

the  sentences  of  summary  courts  shall  have  the  power  to  tences. 

Sec.  5,  July  27, 

remit  or  mitigate  the  same.     Sec.  5,  act  of  July  27,  1892  (27  1892,  v.  27,  P.  277. 
Stat.  L.,  277). 

1331.  That  when  but  one  commissioned  officer  is  present    Trials  bycom- 

e  *  maiming  officer. 

with  a  command  he  shall  hear  and  finally  determine  such 
cases  as  require  summary  action.  Act  of  October  1,  1890 
(26  Stat.  L.,  648). 

1332.  That  any  enlisted  man  charged  with  an  offense  and  m  ^  yl 
brought  before  such  summary  court  may,  if  he  so  desires,  court-martial. 
object  to  a  hearing  and  determination  of  his  case  by  such 

court  and  request  a  trial  by  court-martial,  which  request 
shall  be  granted  as  of  right,  and  when  the  court  is  the 
accuser  the  case  shall  be  heard  and  determined  by  the 
post-commander,  or  by  regimental  or  garrison  court-martial. 
IMd. 

1333.  That  post  and  other  commanders  shall,  on  the  last  J 
day  of  each  month,  make  a  report  to  the  department  head-    Ibid- 
quarters  of  the  number  of  cases  determined  by  summary 
court  during  the  month,  setting  forth  the  offenses  com- 
mitted and  the  penalties  awarded,  which  reports  shall  be 
filed  in  the  office  of  the  judge-advocate  of  the  department. 
Ibid. 

LIMIT   OF   PUNISHMENT. 


1334.  That  whenever  by  any  of  the  Articles  of  War  f 
the  government  of  the  Army  the  punishment  on  conviction  pu^p 
of  any  military  offense  is  left  to  the  discretion  of  the  court-  26>  P-  49L 
martial  the  punishment  therefor  shall  not,  in  time  of  peace, 
be  in  excess  of  a  limit  which  the  President  may  prescribe.1 
Act  of  September  27,  1890  (26  Stat.  L.,  491). 

That  the  President  be,  and  he  hereby  is,  authorized  to 
prescribe  specific  penalties  for  such  minor  offenses  as  IW 
now  brought  before  garrison  and  regimental  courts-martial-  26OciQ^  1890'  v- 
Act  of  October  1,  1890  (26  Stat.  L.,  648). 

only  $9  a  month  because  of  the  retention  of  $4  under  the  act  of  June  16,  1890,  is  not 
in  excess  of  authority.  The  true  monthly  pay  is  $13.  The  retention  does  not  affect 
the  amount  of  the  pay,  but.  simply  the  time  of  payment.  (Ibid,,  par.  17.) 

A  summary  court  is  not  empowered  to  impose  a  sentence  of  dishonorable  dis- 
charge. Such  punishment  is  not  in  terms  authorized  by  article  83  to  be  adjudged 
by  regimental  or  garrison  courts,  and  it  is  impliedly  restricted  to  general  courts  by 
the  fourth  article  of  war.  (Ibid.,  728,  par.  19.) 

By  the  act  of  July  27.  1892  (chap.  272,  sec.  5),  "commanding  officers  authorized  to 
approve  the  sentences  of  summary  courts  "  are  empowered  to  "  remit  or  mitigate  the 
same."  Held  that  where  a  soldier,  who  had  been  convicted  by  a  summary  court,  had 
passed  into  another  command,  so  tliat  the  officer  who  approved  his  sentence  was  no 
longer  his  commanding  officer,  such  officer  could  not  legally  exercise  the  power  of 
remission  or  mitigation  of  the  sentence.  (Ibid.,  par.  20.) 

'Under  the  authority  conferred  by  this  statute,  two  Executive  orders  have  been 
issued  prescribing  limits  of  punishment  for  offenses  to  which  specific  penalties  are 
not  attached  in  the  Articles  of  War.  See  General  Order  No.  21,  A.  G.  O.  of  1891,  as 
amended  by  the  Executive  order  of  March  20,  1895  (MANUAL  FOE  COURTS-MABTIAL, 
pp.  53-63). 

1919  -  33 


514  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

TWICE   IN   JEOPARDY. 

NO  person  tried     1335.  Ko  person  shall  be  tried  a  second  time  for  the  same 
rice          me,  ^^g^i     Qne  jmndred  and  second  Article  of  War. 

102  Art.  War. 

1  The  Constitution  (Article  Y  of  the  amendments)  declares  that  "  no  person  shall 
be  subjected,  for  the  same  offense,  to  be  twice  put  in  jeopardy  of  life  or  limb.''  The 
United  States  courts,  in  treating  the  term  ' '  put  in  jeopardy ' '  as  meaning  practically 
tried,  hold  that  the  "jeopardy"  indicated  "can  be  interpreted  to  mean  nothing 
short  of  the  acquittal  or  conviction  of  the  prisoner  and  the  judgment  of  the  court 
thereon. "(a)  So,  held  that  the  term  "tried,"  employed  in  this  article,  meant  duly 
prosecuted,  before  a  court-martial,  to  a  final  conviction  or  acquittal;  and,  therefore, 
-  that  an  officer  or  soldier,  after  having  been  duly  convicted  or  acquitted  by  such  a 
court,  could  not  be  subjected  to  a  second  military  trial  for  the  same  offense  except 
by  and  upon  his  own  waiver  and  consent.  For,  that  the  accused  may  waive  objec- 
tion to  a  second  trial  was  held  by  Attorney-General  Wirt  in  1818,  (b)  and  has  since 
been  resarded  as  settled  law.  (Dig.  Opin.  J.  A.  Gen.,  118,  par.  1.) 

"Where  an  officer  or  soldier  has  been  duly  acquitted  or  convicted  of  a  specific  of- 
fense he  can  not,  against  his  consent,  be  brought  to  trial  for  a  minor  offense  included 
therein,  and  an  acquittal  or  conviction  of  which  was  necessarily  involved  in  the 
finding  upon  the  original  charge.  Thus,  a  party  convicted  or  acquitted  of  a  desertion 
can  not  afterwards  be  brought  to  trial  for  an  absence  without  leave  committed  in 
and  by  the  same  act.  (Ibid.,  par.  2.) 

Held  that  there  was  no  "second"  trial,  in  the  sense  of  the  article,  in  the  following 
cases,  viz:  "Where  the  party, after  being  arraigned  or  tried  before  a  court  which  was 
illegally  constituted  or  composed,  or  was  without  jurisdiction,  was  again  brought  to 
trial  before  a  competent  tribunal;  where  the  accused,  having  been  arraigned  upon 
and  having  pleaded  to  certain  charges,  was  rearraigned  upon  a  new  set  of  charges 
substituted  for  the  others,  which  were  withdrawn ;  where  one  of  several  distinct 
charges  upon  which  the  accused  had  been  arraigned  was  withdrawn  pending  the 
trial,  and  the  accused,  after  a  trial  and  finding  by  the  court  upon  the  other  charges, 
was  brought  to  trial  anew  upon  the  charge  thus  withdrawn;  where,  after  pro- 
ceedings commenced,  but  discontinued  without  a  finding,  the  accused  was  brought 
to  trial  anew  upon  the  same  charge;  where,  after  having  been  acquitted  or  con- 
victed upon  a  certain  charge  which  did  not  in  fact  state  the  real  offense  committed, 
the  accused  was  brought  to  trial  for  the  same  act,  but  upon  a  charge  setting  forth 
the  true  offense ;  where  the  accused  was  brought  to  trial  after  having  had  his  case 
fully  investigated  by  a  different  court,  which,  however,  failed  to  agree  in  a  finding 
and  was  consequently  dissolved;  (c)  where  the  first  court  was  dissolved  because 
reduced  below  five  members  by  the  casualties  of  the  service  pending  the  trial ; 
where,  for  any  cause,  there  was  a  "mistrial,"  or  the  trial  first  entered  upon  was 
terminated,  or  the  court  dissolved,  at  any  stage  of  the  proceedings  before  affinal 
acquittal  or  conviction.  (Ibid.:  par.  3.) 

"Where  an  officer  or  soldier,  having  been  acquitted  or  convicted  of  a  criminal 
offense  by  a  civil  court,  is  brought  to  trial  by  a  court-martial  for  a  military  offense 
involved  in  his  criminal  act,  he  can  not  plead  "  a  former  trial,"  in  the  sense  of  this 
article.  So,  where  the  trial  for  the  military  offense  has  preceded,  he  can  not  plead 
autrefois  acquit  or  convict  to  an  indictment  for  the  civil  crime  committed  in  and  by 
the  same  act.  (d)  (Ibid.,  119,  par.  4.) 

Where  the  accused  has  been  once  duly  convicted  or  acquitted,  he  has  been  "  tried" 
in  the  sense  of  the  article,  and  can  not  be  tried  again  against  his  will,  though  no 
action  whatever  be  taken  upon  the  proceedings  by  the  reviewing  authority,  or 
though  the  proceedings,  findings  (and  sentence,  if  any, )  be  wholly  disapproved  by 
him.  (e)  It  is  immaterial  whether  the  former  conviction  or  acquittal  is  approved  or 
disapproved.  (Ibid.,  par.  5.) 

That  an  accused  has  been,  in  the  opinion  of  the  reviewing  authority,  inadequately 
sentenced,  either  by  a  general  or  an  inferior  court,  can  not  except  his  case  from  the 
application  of  this  article;  though  insufficiently  punished,  he  can  not  be  tried  again 
for  the  same  offense.  (Ibid.,  120,  par.  6.) 

Where  an  officer,  who  had  killed  a  superior  officer  in  an  altercation  at  a  military 
post,  was  brought  to  trial  before  a  civil  court  on  a  charge  ot  murder  and  acquitted, 
and  was  subsequently  arraigned  before  a  court  martial  for  the  offense  against  mili- 
tary discipline  involved  in  nis  criminal  act,  held  that  a  plea  of  former  trial  inter- 
posed by  him  was  properly  overruled  by  the  court.  (Ibid.,  par.  7.) 

A  soldier  was  convicted  of  "manslaughter,"  but  the  findings  and  sentence  were 
disapproved.  He  was  then  brought  to  trial  on  a  charge  of  mutiny,  as  committed  on 
the  occasion  of  the  homicide,  the  latter  being  alluded  to  in  the  specification  as  an 
incidental  circumstance  of  aggravation,  and  was  found  guilty  and  sentenced.  Held 
that  the  accused  was  not,  in  the  sense  of  this  article,  "tried  a  second  time  for  the 
same  offense,"  the  mutiny  not  consisting  in  the  act  of  homicide,  but  constituting  a 
distinct  offense.  (Ibid.,  par.  8.) 

There  can  not,  in  view  of  this  article,  be  a  second  trial  where  the  offense  is  really 
the  same,  though  it  may  be  charged  under  a  different  description  and  under  a  differ- 
ent article  of  war.  Thus,  where  the  Government  elects  to  try  a  soldier  under  the 
thirty-second  article  for  "absence  without  leave,"  or  under  the  forty  second  for 
»'lying  out  of  quarters,"  and  the  testimony  introduced  develops  the  fact  that  the 
offense  was  desertion,  the  accused,  after  an  acquittal  or  conviction,  can  not  legally 
be  brought  a  second  time  to  trial  for  the  same  absence  charged  as  a  desertion.  (Ibid., 

a  U.  S.  v.  Haskell,  4  Wash.  C.  C.,  409.    And  see  U.  S.  v.  Shoemaker,  2  McLean   114; 
TJ.  S.  v.  Gilbert,  2  Sumnor,  19;  U.  S.  v.  Perez,  9  Wheaton,  579 ;  1  Opin.  Att.  Gen.,  294. 
6  1  Opin.  Att.  Gen.,  233.    And  see  also  6  ibid.,  205. 
c  See  U.  S.  v.  Perez,  9  Wheat.,  579 
dSee  6  Opin.  Att.  Gen.,  413,  506. 
e  Compare  Macomb,  section  159 ;  O'Brien,  277 ;  Rules  for  Bombay  Army,  45. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  515 


STATUTES  OF  LIMITATION. 

1336.  No  person  shall  be  liable  to  be  tried  and  punished  .imitation  on 

*  time  of  prosecu- 

by  a  general  court-martial  for  any  offense  which  appears  tion^  ^ 
to  have  been  committed  more  than  two  years  before  the 
issuing  of  the  order  for  such  trial,  unless,  by  reason  of 
having  absented  himself,  or  of  some  other  manifest  impedi- 
ment, he  shall  not  have  been  amenable  to  justice  within 
that  period.1  One  hundred  and  third  Article  of  War. 


JThe  statute  of  limitation  (103d  A.  W.)  is  not  prohibitory  as  to  jurisdiction,  but 
properly  a  matter  of  defense,  which  to  become  effective  should  be  pleaded  and  proved. 
By  pleading  to  ihe  general  issue  the  accused  waives  his  right  to  plead  the  limitation, 
but  the  limitation  may  still  be  taken  advantage  of  by  evidence  showing  that  it  has 
taken  effect.  See  MANUAL  FOR  COURTS-MARTIAL,  p.  32. 

The  mere  fact  that  the  offense  was  concealed  by  the  accused  and  remained  un- 
known to  the  military  authorities  for  more  than  two  years  constitutes  no  "impedi- 
ment" in  the  sense  of  the  article.  (Dig.  Opin.  J.  A.  Gen.,  123,  par.  5.) 

It  is  quite  clear  that  any  person  who  takes  himself  out  of  the  jurisdiction,  with 
the  intention  of  avoiding  being  brought  to  justice  for  a  particular  offense,  can  have 
no  benefit  of  the  limitation,  at  least  when  prosecuted  for  that  offense  in  a  court  of 
the  United  States.  *  *  *  A  person  fleeing  from  the  justice  of  his  country  is  not 
supposed  to  have  in  mind  the  object  of  avoiding  the  process  of  a  particular  court,  or 
the  question  whether  he  is  amenable  to  the  justice  of  the  nation  or  of  the  State,  or 
of  both.  Proof  of  a  specific  intent  to  avoid  either  could  seldom  be  had,  and  to  make 
it  an  essential  requisite  would  defeat  the  whole  object  of  the  provision  in  question. 
Streep  v.  United  States,  160  U.  S.,  128,  United  States  v.  Smith,  4  Day,  121,  125;  Rob- 
erts  v.  Reilly,  116  U.  S.,  80,  97. 

A  mere  allegation  in  a  specification  to  the  effect  that  the  whereabouts  of  the  of- 
fender was  unknown  to  the  military  authorities  during  the  interval  of  more  than 
two  years  which  had  elapsed  since  the  offense  is  not  a  good  averment  of  a  'manifest 
impediment"  in  the  sense  of  the  article.  (Dig.  Opin.  J.  A.  Gen.  par  6.) 

By  the  absence  referred  to  in  the  original  article,  in  the  term* "unless  by  reason 
of  having  absented  himself,"  is  believed  to  be  intended  not  necessarily  an  absence 
from  the  United  States,  but  an  absence  by  reason  of  a  "  fleeing  from  justice,"  analo- 
gous to  that  specified  in  section  1045,  Revised  Statutes,  which  has  been  held  to  mean 
leaving  one's  home,  residence,  or  known  abode  within  the  district,  or  concealing 
one's  self  therein,  with  intent  to  avoid  detection  or  punishment  for  the  offense 
against  the  United  States,  (a)  Thus  held  that,  in  a  case  other  than  desertion,  it  was 
not  essential  for  the  prosecution  to  be  prepared  to  prove  that  the  accused  had  been 
beyond  the  territorial  jurisdiction  of  the  United  States  in  order  to  save  the  case  from 
the  operation  of  the  limitation.  (Ibid.,  p.  125,  par.  14.) 

A  court-martial,  in  a  case  of  an  offense  other  than  desertion,  sustained  a  plea  of 
the  statute  of  limitations  in  bar  of  trial  for  the  reason  that  the  judge-advocate  could 
produce  no  evidence  to  show  that  the  accused  was  not  within  the  territorial  jurisdic- 
tion of  the  United  States  during  his  absence.  Held  that  such  showing  was  not 
necessary,  and  that  it  was  sufficient  that  the  absence  should  be  any  unauthorized 
absence  from  the  military  service  whereby  the  absentee  evades  and  for  the  time 
escapes  trial.  This  construction  of  the  terin  "absented  himself"  in  the  article  cor- 
responds to  that  placed  on  the  words  "fleeing  from  justice,"  as  used  in  the  statutes 
of  the  United  States  to  designate  those  whom  the  statutes  of  limitation  for  the  pros- 
ecution of  crimes  do  not  protect.  (Ibid.,  par.  15.) 

The  liability  to  trial  after  discharge,  imposed  by  the  last  clause  of  article  60,  held 
subject  to  the*  limitation  prescribed  in  article  103.  (b)  And  so  held  as  to  the  liability 
to  trial  after  the  expiration  of  the  term  of  enlistment,  under  article  48.  (c)  (Ibid.  p. 
124,par.  9.) 

The  prohibition  of  the  article  relates  only  to  prosecutions  before  general  courts- 
martial  ;  it  does  not  apply  to  trials  by  inferior  courts.  So,  courts  of  inquiry  may  be 
convened  without  regard  to  the  period  which  has  elapsed  since  the  date  or  dates  of 
the  act  or  acts  to  be  investigated,  (d)  Nor  does  the  rule  of  limitation  apply  to  the 
hearing  of  complaints  by  regimental  courts  under  article  30.  (Ibid.,  par.  10.) 

In  view  of  this  article  it  is  the  duty  of  the  Government  to  prosecute  an  offender 
within  a  reasonable  time  after  the  commission  of  the  offense.  (Ibid.,  par.  11.) 

The  limitation  is  properly  a  matter  of  defense,  to  be  specially  pleaded  and  proved,  (e) 
By  pleading  the  general  issue  the  accused  is  assumed  to  waive  the  right  to  plead  the 
limitation  by  a  special  plea  in  bar;  but  under  a  plea  of  "not  guilty"  the  limitation 
may  be  taken  advantage  of  by  evidence  showing  that  it  has  taken  effect.  (Ibid., 
par.  12.) 

aU.  S.  v.  O'Brien,  2  Dillon,  381;  U.  S.  v.  White,  5  Cranch  C.  C.,  38.  73;  Gould  & 
Tucker,  Notes  on  Revised  Statutes,  349. 

b  14  Opins.  Att.  Gen.,  52. 

c  See,  to  a  similar  effect,  13  Opins.  Att.  Gen.,  462;  15  ibid.,  152;  16  ibid.,  170;  also  In 
re  Bird,  2  Sawyer,  33. 

d  See  6  Opins.  Att.  Gen.,  239. 

eln  re  Bogart,  2  Sawyer,  397 ;  In  re  White,  17  Fed.  Rep.,  723 ;  In  re  Davison,  21  ibid., 
618;  In  re  Zimmerman,  30  ibid.,  176;  G.  O.  22  of  1893.  And  compare  U.  S.  v. 
Cooke,  17  Wallace,  168. 


516  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

Limitation  on     1337,  ]STo  person  shall  be  tried  or  punished  by  a  court- 
prosecutions  tor 
desertion  in  time  martial  for  desertion  in  time  of  peace  and  not  in  the  face 

Apr.ii,i89o,v.  of  an  enemy,  committed  more  than  two  years  before  the 
arraignment  of  such  person  for  such  offense,  unless  he 
shall  meanwhile  have  absented  himself  from  the  United 
States,  in  which  case  the  time  of  his  absence  shall  be  ex- 
cluded in  computing  the  period  of  the  limitation :  Provided, 
That  said  limitation  shall  not  begin  until  the  end  of  the 
term  for  which  said  person  was  mustered  into  the  service. 
Act  of  April  11,  1890  (26  Stat.  L.,  54}. 

COURTS  OF  INQUIRY. 

qiSy.^8  °f  in  1338<  A  court  of  inquiry,  to  examine  into  the  nature  of 
us  Art.  war.  ally  transaction  of,  or  accusation  or  imputation  against, 
any  officer  or  soldier,  may  be  ordered  by  the  President  or 
by  any  commanding  officer;  but,  as  courts  of  inquiry 
may  be  perverted  to  dishonorable  purposes,  and  may 
be  employed,  in  the  hands  of  weak  and  envious  com- 
mandants, as  engines  for  the  destruction  of  military  merit, 
they  shall  never  be  ordered  by  any  commanding  officer, 
except  upon  a  demand  by  the  officer  or  soldier  whose 
conduct  is  to  be  inquired  of.1  One  hundred  and  fifteenth 
Article  of  War. 

iifEt^war.  1339'  A  court  of  inquiry  shall  consist  of  one  or  more 
officers,  not  exceeding  three,  and  a  recorder,  to  reduce  the 

1  This  article  authorizes  the  institution  of  a  court  of  inquiry  (a)  only  in  a  case  of 
an  "officer  or  soldier,"  and  the  word  "officer,"  as  employed  in  the  articles,  is  denned, 
by  section  1342,  Revised  Statutes,  to  mean  commissioned  officer.  A  court  of  inquiry 
can  not,  therefore,  be  convened  on  the  application  or  in  a  case  of  a  person  who  is  not 
an  officer  (or  soldier)  of  the  Army  at  the  time.  Such  a  court  can  not  be  ordered  to 
investigate  transactions  of  or  charges  against  a  party  who,  by  dismissal,  discharge, 
resignation,  etc.,  has  become  separated  from  the  military  service,  although  such 
transactions  or  charges  relate  altogether  to  his  acts  er  conduct  while  in  the  Army. 
A  court  of  inquiry  can  not  be  ordered  in  a  case  of  an  "acting  assistant  surgeon," 
who  is  not  an  officer  of  the  Army,  but  only  a  civil  employee.  (Dig.  Opin.  J.  A.  Gen., 

135,  par.  1.) 

A  court  of  inquiry  should  not  in  general  be  ordered  by  an  inferior — post  or  regi- 
mental—commander where  the  charges  required  to  be  investigated  are  not  such  as 
an  inferior  court-martial  could  legally  take  cognizance  of.  Courts  of  inquiry  con- 
vened by  such  commanders  are,  however,  of  rare  occurrence  in  our  service.  (Ibid., 

136,  par.  2.) 

Though  a  court  of  inquiry  has  sometimes  been  compared  to  a  grand  .jury,  there  is 
little  substantial  resemblance  between  the  two  bodies.  The  accused  appears  and 
examines  witnesses  before  such  a  court  as  treely  as  before  a  court-martial,  (see  article 
118),  and  its  proceedings  are  not  required  to  be  secret,  but  may  be  open  at  the  discre- 
tion of  the  court.  (Ibid.,  par.  3.) 

Although  neither  article  88  nor  other  provision  of  the  code  specifically  authorizes 
the  challenging  of  the  members  of  a  court  of  inquiry,  yet,  in  the  interests  of  justice 
and  by  the  usage  of  the  service  in  this  country,  this  proceeding  is  permitted  in  the 
same  manner  as  before  courts-martial.  Article  117  requires  that  members  of  courts 
of  inquiry  shall  be  sworn  "well  and  truly  to  examine  and  inquire,  according  to  the 
evidence,  without  partiality,  prejudice,"  etc.;  and  it  is  the  sense  of  tlie  service  that 

a  A  court  of  inquiry  is  not  a  court  in  the  legal  sense  of  the  term,  but  rather  a 
council,  commission,  or  board  of  investigation.  It  does  not  administer  justire;  no 
plea  or  specific  issue  is  presented  to  it  for  trial ;  its  proceedings  are  not  a  trial  of 
guilt  or  innocence;  it  does  not  come  to  a  verdict  or  pass  a  sentence.  For  purposes 
of  investigation,  however,  a  court  of  inquiry  in  this  country  is  clothed  with  ample 
powers,  and,  in  an  important  case,  its  opinions  may  be  scarcely  less  significant  and 
even  final  than  that  of  a  military  court,  proper,  that  is  to  say.  a  court-martial.  (1 
Winthrop'a  Military  Law  and  Precedents,  chapter  24.) 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  517 

proceedings  and  evidence  to  writing.  One  hundred  and 
sixteenth  Article  of  War. 

1340.  The  recorder  of  a  court  of  inquiry  shall  administer    oaths  of  mem- 

bers and  record- 
to  the  members  the  following  oath :  "You  shall  well  and er. 

truly  examine  and  inquire,  according  to  the  evidence,  into 
the  matter  now  before  you,  without  partiality,  favor,  affec- 
tion, prejudice,  or  hope  of  reward:  so  help  you  God."  After 
which  the  president  of  the  court  shall  administer  to  the 
recorder  the  following  oath:  "You,  A  B,  do  swear  that 
you  will,  according  to  your  best  abilities,  accurately  and 
impartially  record  the  proceedings  of  the  court  and  the 
evidence  to  be  given  in  the  case  in  hearing :  so  help  you 
God."  One  hundred  and  seventeenth  Article  of  War. 

1341.  A  court  of  inquiry,  and  the  recorder  thereof,  shall  m^nd«aS?e 
have  the  same  power  to  summon  and  examine  witnesses  as  wlMnaer8838]863  c 
is  given  to  courts- martial  and  the  judge- advocates  thereof.  J^f'jUj/s^fS' 
Such  witnesses  shall  take  the  same  oath  which  is  taken  by  0^9, 8.25,' v!  12, P'. 
witnesses  before  courts  martials,  (l)  and  the  party  accused    us  Art.  war. 
shall  be  permitted  to  examine  and  cross-examine  them,  so 

as  fully  to  investigate  the  circumstances  in  question.  One 
hundred  and  eighteenth  Article  of  War. 

1342.  A  court  of  inquiry  shall  not  give  an  opinion  on  the  ^Pj1"011'  when 
merits  of  the  case  inquired  of  unless  specially  ordered  to  *  n»  Art.  war. 
do  so.2     One  hundred  and  nineteenth  Article  of  War. 

their  competency  so  to  do  should  be  liable  to  be  tried  by  the  same  tests  as  in  a  case 
of  a  court-martial,  (a)  (Ibid.,  par.  4.) 

A  court  of  inquiry  has  no  power  to  punish  as  for  a  contempt.  Such  power  of  this 
nature  as  is  conferred  by  article  86  is  restricted  in  terms  to  courts-martial.  More- 
over, a  court  of  inquiry,  not  being  in  a  proper  sense  a  court,  can  not  exercise  the 
strictly  judicial  function  of  punishing  contempts,  (b)  (Ibid.,  137,  par.  5.) 

J  So  in  the  roll. 

2  An  opinion  given  by  a  court  of  inquiry  is  not  in  the  nature  of  a  sentence  or  adju- 
dication pronounced  upon  a  trial.  The  accused,  upon  a  subsequent  trial  by  court- 
martial,  of  charges  investigated  by  a  court  of  inquiry,  can  not  plead  the  proceedings 
or  opinion  of  the  latter  as  a  former  trial,  acquittal,  or  conviction.  (Dig.  Opin.  J.  A. 
Gen.,  137,  par.  h) 

While  it  is  of  course  desirable  that  the  members  of  a  court  of  inquiry,  directed  to 
express  an  opinion,  should  concur  in  their  conclusions,  they  are  not  required  to  do 
so  by  law  or  regulation,  (c)  The  majority  does  not  govern  the  minority,  as  in  the 
case  of  a  finding  or  sentence  by  court-martial.  If  a  member  or  a  minority  of  mem- 
bers can  not  conscientiously,  and  without  a  weak  yielding  of  independent  convic- 
tions, agree  with  the  majority,  it  is  better  that,  such  member  or  members  should  for- 
mally disagree  and  present  a  separate  report  or  reports  accordingly.  The  very 

a  See  Macomb,  sec.  204 ;  O'Brien,  292 ;  De  Hart,  278.  In  the  joint  resolution  of  Con- 
gress of  February  13, 1874,  authorizing  the  President  to  convene  a  certain  special  court 
of  inquiry,  it  was  "provided  that  the  accused  may  be  allowed  the  same  right  of  chal- 
lenge as  allowed  by  law  in  trials  by  court-martial."  It  appears,  however,  to  have 
been  regarded  inthedebate  on  this  resolution  (see  Congressional  Record,  vol.  2,  Noa. 
38, 40)  that  this  provision  was  unnecessary  to  entitle  the  party  to  the  privilege. 


states  the  law  (as  to  witnesses)  in  saying  (Mil.  and  Mar.  Law,  198)  that  a  court  of 
inquiry  "has  no  power  to  punish  them  for  contumacy  or  silence." 

cln  the  case  of  the  court  of  inquiry  (composed  of  seven  general  officers)  on  the 
Cintra  Convention,  in  1808,  the  members  who  dissented  from  the  majority  were  re- 
quired by  the  convening  authority  to  put  on  record  their  opinions,  and  three  dissent- 
ing opinions  were  accordingly  given.  A  further  instance,  in  which  two  of  the  five 
members  of  the  court  gave  each  a  separate  dissenting  opinion,  is  cited  by  Hough 
(Precedents,  642).  Mainly  upon  the  authority  of  the  former  case,  both  Hough  (Prece- 
dents, 642)  and  Simmons  (sec.  339)  hold  that  members  nonconcurring  with  the  ma- 
jority are  entitled  to  have  their  opinions  reported  in  the  record. 


518  THE   MILITARY   LAWS    OF   THE   UNITED    STATES. 

Authentica-     1343.  The  proceedings  of  a  court  of  inquiry  must  be 

tion  of  proceed- 
ings- authenticated  by  the  signatures  of  the  recorder  and  the 

president  thereof,  and  delivered  to  the  commanding  officer. 
One  hundred  and  twentieth  Article  of  War. 
Proceedings,     1344.  The  proceedings  of  a  court  of  inquiry  may  be  ad- 

when  used  as  ev- 
idence, mitted  as  evidence  by  a  court-martial,  in  cases  not  capital, 

nor  extending  to  the  dismissal  of  an  officer.  Provided, 
That  the  circumstances  are  such  that  oral  testimony  can 
not  be  obtained.1  One  hundred  and  twenty -first  Article  of 
War. 

EVIDENCE. 

Evidence  to  be     1345.    All  persons  who   give  evidence  before  a  court- 
given  underoath.  ,  .. 

92  Art.  War.  martial  shall  be  examined  on  oath,  or  affirmation,  in  the 
following  form :  "You  swear  (or  affirm)  that  the  evidence 
you  shall  give,  in  the  case  now  in  hearing,  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.  So  help 
you  God."2  Ninety -second  Article  of  War. 

disagreement,  indeed,  of  intelligent  minds  is  a  material  and  important  fact  in  the 
case,  and  one  of  which  the  reviewing  authority  is  entitled  to  have  the  advantage  in 
his  consideration  of  and  action  upon  the  same.  (Ibid.,  par.  2.) 

Where,  as  in  the  majority  of  cases,  the  inquiry  is  instituted  with  a  view  of  assist- 
.  ing  the  determination  by  the  President,  or  a  military  commander,  of  the  question 
whether  the  party  should  be  brought  to  trial,  the  opinion  of  the  court  will  properly 
be  as  to  whether  further  proceedings  before  a  court-martial  are  called  for  in  the  ca.se, 
with  the  reasons  for  the  conclusions  reached.  Where  no  such  view  enters  into  the 
inquirj^,  but  the  court  is  convened  to  investigate  a  question  of  military  right,  respon- 
sibility, conduct,  etc.,  the  opinion  will  properly  confine  itself  to  the  special  question 
proposed  arid  its  legitimate  military  relations.  A  court  of  inquiry,  composed  as  it 
is  of  military  men,  will  rarely  find  itself  called  upon  to  express  an  opinion  upon 
questions  of  a  purely  legal  character,  (a)  (Dig.  Opin.  J.  A.  Gen.,  138,  par.  3.) 

It  is  not  irregular,  but  authorized,  for  a  court  of  inquiry,  in  a  proper  case,  to  reflect, 
in  connection  with  itsopinion,  upon  any  improper  language  or  conduct  of  the  ace  used, 
prosecuting  witness,  or  other  person  appearing  before  it  during  the  investigation.  (6) 
(Ibid.,  par.  4.) 

1  While  the  proceedings  of  a  court  of  inquiry  can  not  be  admitted  as  evidence  on 
the  merits  upon  a  trial  before  a  court-martial  of  an  offense  for  which  the  sentence  of 
dismissal  will  be  mandatory  upon  conviction,  (c)  yet  held  that  upon  the  trial  of  such 
offense,  as  upon  any  other,  such  proceedings,  properly  authenticated,  would  be 
admissible  in  evidence  for  the  purpose  of  impeaching  the  statements  of  a  witness 
upon  the  trial  who — it  was  proposed  to  show— had  made  quite  different  statements 
upon  the  hearing  before  the  court  of  inquiry,  (d)  Ibid.  139. 

'•'Oath. — This  article  prescribes  a  single  specific  form  of  oath  to  be  taken  by  all 
witnesses.  The  Constitution,  however  (article  1  of  amendments),  has  provided 
that  Congress  shall  make  no  law  prohibiting  the  free  exercise  of  religion.  Where, 
therefore,  the  prescribed  form  is  not  in  accordance  with  the  religious  tenets  of  a 
witness,  he  should  be  permitted  to  be  sworn  according  to  the  ceremonies  of  his  own 
faith  or  as  he  may  deem  binding  on  his  conscience,  (e)  (Dig.  Opin.  J.  A.  Gen..  107, 
par  I.) 

The  article  does  not  prescribe  by  whom  the  oath  shall  be  administered.  By  the 
custom  of  the  service  it  is  administered  by  the  judge-ad  vocate.  (And  see,  now,  the 
provision  of  the  act  of  July  27. 1892,  sec.  4.)  When  the  judge-ad  vocate  himself  takes 
the  witness  stand,  he  is  properly  sworn  by  the  president  of  the  court.  (Ibid.,  108, 
par.  2.) 

A  witness  who  has  once  been  sworn  and  has  testified  is  not  required  to  be  resworn 
on  being  subsequently  recalled  to  the  stand  by  either  party.  The  reswearing,  how- 


a  In  an  exceptional  case,  that  of  the  special  court  of  inquiry  authorized  by  Con- 
gress in  the  joint  resolution  of  February  13,  1874,  the  court  was  required  to  express 
an  opinion  not  only  upon  the  "moral"  but  upon  the  "technical  and  legal  responsi- 
bility "  of  the  officer  for  the  "offenses  "  charged. 

b  Thus  the  court  of  inquiry  on  the  conduct  of  the  Seminole  war  adverted,  in  its 
opinion,  unfavorably  upon  certain  offensive  and  reprehensible  language  employed 
against  each  other  by  the  two  general  officers  concerned,  the  one  in  his  statement  to 
the  court  and  the  other  in  his  official  communications  which  were  put  in  evidence. 
(See  G.  O.  13,  Headquarters  of  Army,  1837.) 

c  Compare  G.  O.  33,  Department  of  Arizona,  1871. 

d  See  this  ruling,  published,  as  adopted  by  the  President,  in  G.  C.  M.  O.  40,  Head- 
quarters  of  Army,  1880. 

«See  1  General  Evidence,  sec.  371;  O'Brien,  260. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  519 


TESTIMONY   OF   ACCUSED   PERSONS. 

1346.  That  in  the  trial  of  all  indictments,  informations.    Accused    per- 

'  sons  may  testify. 

complaints,  and  other  proceedings  against  persons  charged  20MaJ016' 1878' v- 
with  the  commission  of  crimes,  offenses,  and  misdemeanors, 

ever,  of  such  a  witness  will  not  affect  the  legal  validity  of  the  proceedings  or  sen- 
tence.   (Ibid.,  par.  3.) 

COMPETENCY  OP  WITNESSES. 

The  rules  governing  the  competency  of  witnesses  before  the  criminal  courts  of  the 
United  States  and  the  States  are  where  apposite,  generally  (though  not  always 
necessarily,  followed  in  the  practice  of  courts  martial,  (a)  (Ibid.,  749  par.  1.)  See 
also  MANUAL  FOR  COURTS  MARTIAL  p  40 

The  law  by  which,  in  the  opinion  of  this  court,  the  admissibility  of  testimony 
in  criminal  cases  must  be  determined  is  the  law  of  the  State  as  it  was  when  the 
courts  of  the  United  States  were  established  by  the  judiciary  act  of  1789.  The 
courts  of  the  United  States  have  uniformly  acted  upon  this  construction  of  these 
acts  of  Congress  and  it  has  thus  been  sanctioned  by  a  practice  of  sixty  years.  (U.  S. 
v.  Reid,  12  How.,  361, 363,  366;  Logan  v  TLS-,  144  U.  S.,  263, 301.) 

MISCELLANEOUS  PROVISIONS. 

A  witness  who  has  given  his  testimony  should  in  general  be  allowed  to  modify  the 
sani(  where  he  desires  to  do  so  in  a  material  particular.  But  where  the  court  has 
refused  to  permit  a  witness  to  correct  his  statement  as  recorded,  such  refusal  need 
not  induce  a  disapproval  of  the  proceedings  unless  it  appear  that  the  rights  of  the 
accuser1  have  thus  been  prejudiced.  (Dig.  Opin.  J.  A.  Gen. ,  753,  par.  14.) 

Witnesses  should  not  in  general  be  admitted  to  the  court  room,  but  should  be  kept 
as  far  as  practicable  apart,  until  required  to  appear  and  give  their  testimony.  But 
that  a  witness  or  witnesses  may  have  been  permitted  to  remain  in  the  court  room 
and  hear  the  testimony  of  witnesses  previously  called  can  not  affect  the  legality  of 
the  proceedings  (Ibid.;  par.  15.) 

A  witness  can  have  no  authority  to  discharge  or  relievo  himself  from  attendance 
on  the  ground  that  the  testimony  desired  of  him  is  immaterial,  or  for  any  other 
reason.  In  the  civil  practice  such  an  act  would  be  a  grave  contempt  of  court.  It  is 
for  the  court  to  ;udge  as  to  the  materiality  or  pertinency  of  the  evidence  of  wit- 
nesses, and  unless  a  w'tuess  has  been  determined  by  the  court  to  be  incompetent  or 
his  testimony  to  be  inadmissible,  he  should  remain  and  stand  his  examination  till 
informed  by  the  court  or  judge-advocate  that  his  attendance  is  no  longer  required 
in  the  case.  (Ibid.,  par.  16.)  See  also,  in  this  connection,  MANUAL  FOR  COURTS- 
MARTIAL,  pp.  40-47. 

FEES. 

For  provisions  of  regulations  in  respect  to  fees  of  civilian  witnesses  in  the  employ 
of  the  Government,  see  paragraphs  962,  964,  and  965,  Army  Regulations  of  1895;  for 
similar  provisions  in  respect  to  civilian  witnesses  who  are  not  in  Government  employ, 
see  paragraphs  963,  964,  and  965,  Army  Regulations  of  1895.  See,  also,  MANUAL  FOR 
COURTS-MARTIAL,  pp.  38-39, 142,  143. 

In  view  of  the  provision  of  section  1248,  Revised  Statutes,  investing  retiring  boards 
with  such  powers  of  courts-martial  as  may  be  necessary  to  enable  them  to  inquire 
into  and  determine  the  facts  touching  the  disability  of  officers  whose  cases  are  re- 
ferred to  them,  held  that  a  retiring  board  might  legally  cause  material  witnesses  to 
be  summoned  to  attend  its  sessions,  and  that  witnesses  so  summoned  would  probably 
be  entitled  to  the  fees  of  witnesses  before  courts-martial.  (Dig.  Opin.  J.  A.  G.,  756, 
par.  25.) 

Held  that  parties  who  appeared  and  testified  before,  and  at  the  instance  of,  an 
officer  charged  with  the  preliminary  investigation  of  a  case,  but  were  not  required 
to  attend  at  a  subsequent  trial,  were  not  legally  entitled  to  witness  fees.  (Ibid.,  757, 
par.  26.) 

The  compensation  allowed  by  the  Secretary  of  War  for  witnesses  summoned  as 
experts  in  handwriting  before  a  court-martial  (see  Smith  v.  U.  S.,  24  C.  Cls.  R., 
209)  held  payable  out  of  the  annual  appropriation  "for  compensation  of  witnesses 
attending  upon  courts-martial  and  courts  of  inquiry  "  (Ibid.,  759,  par.  35.) 

Held  that  duly  attending  by  a  civilian  witness  before  a  duly  authorized  official  to 
give  a  deposition,  to  be  used  in  evidence  on  a  military  trial,  was  to  be  regarded  as 
practically  equivalent  to  attending  a  court-martial,  and  that  the  dependent  was 
entitled  to  be  paid  the  usual  allowances  (i.  e.,  the  same  as  those  of  witnesses  appear- 
ing before  the  court,)  out  of  the  regular  appropriation  for  the  "compensation  of 
witnesses  attending  before  courts-martial,"  etc.  (Ibid.,  par.  36.) 

Held  that  the  annual  appropriation  by  Congress  for  the  compensation  of  witnesses 
attending  before  courts-martial  was  evidently  based  upon  the  understanding  that 
such  compensation,  not  being  prescribed  by  statute,  was  one  left  to  be  fixed  by  the 
Secretary  of  War  (the  authority  charged  with  the  expenditure  of  the  appropria- 
tion), and  was,  indeed,  that  which  had  been  so  fixed  and  published  in  Army  Regula- 
tions. Tlnis  the  appropriation,  made  as  it  is  from  year  to  year,  is  to  be  regarded  as 
made  in  knowledge  and  recognition  of  the  rates  of  compensation  as  established  by 
such  regulations.  Section  848.  Revised  Statutes,  prescribing  witness  fees,  and 


a  In  the  British  service,  until  the  year  1805,  oaths  were  only  administered  to  wit- 
nesses before  general  courts-martial.  In  that  year,  but  against  the  advice  of  many 
general  officers  (including  the  Duke  of  Wellington),  the  provisions  of  the  article 
were  extended  in  this  respect  to  the  minor  courts.  (Clode,  Mil.  Law,  126.) 


520  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

in  the  United  States  courts,  Territorial  courts,  and  courts- 
martial,  and  courts  of  inquiry,  in  any  State  or  Territory, 
including  the  District  of  Columbia,  the  person  so  charged 
shall,  at  his  own  request  but  not  otherwise,  be  a  competent 
witness.  And  his  failure  to  make  such  request  shall  not 
create  any  presumption  against  him.1  Act  of  March  16, 
1878  (20  Stat.  L.,  30). 

constituting  a  part  of  the  chapter  entitled  "  The  Judiciary,"  has  reference  to  such 
fees  in  the  Federal  civil  courts  only,  and  has  uo  application  whatever  to  courts- 
martial,  which  are  no  part  of  the  judiciary  of  the  United  States.  (Ibid.,  par.  37.) 

Neither  the  appropriation  "for  the  compensation  of  witnesses  attending  civil 
courts,"  nor  the  appropriation  for  the  contingent  expenses  of  the  Army,  is  applica- 
ble to  the  payment  of  allowances,  as  witnesses  before  civil  courts,  of  officers  or 
soldiers  of  the  Army  or  of  civil  employees  of  the  military  establishment.  For  such 
allowances  they  must  look  to  the  laws  and  appropriations  fixing  and  authorizing 
the  payment  of  witness  fees  in  these  courts.  (See  paragraph  960,  Army  Regula- 
tions of  1895.)  Ibid.,  760,  par.  38. 

CRIMINATING  QUESTIONS. 

The  privilege,  recognized  by  the  common  law,  of  a  witness  to  refuse  to  respond  to 
a  question  the  answer  to  which  may  criminate  him,  is  a  personal  one,  which  the 
witness  may  exercise  or  waive  as  he  may  see  fit-  It  is  not  for  the  judge-advocate 
or  accused  to  object  to  the  question  or  to  check  the  witness,  or  the  court  to  exclude 
the.  question  or  direct  the  witness  not  to  answer.  Where,  however,  he  is  ignorant 
of  his  right,  the  court  may  properly  advise  him  of  the  same.  But  where  a  witness 
declines  to  answer  a.  question  on  the  ground  that  it  in  of  such  a  character  that  the 
answer  thereto  may  criminate  him,  but  the  court  decides  that  the  question  is  not  one 
of  this  nature  and  that  it  must  be  answered,  the  witness  can  not  properly  further 
refuse  to  respond,  and,  if  he  does  so,  will  render  himself  liable  to  charges  and  trial 
under  article  62.  (Dig.  Opin.  J.  A.  Gen.,  754,  par.  17.) 

It  is  not  sufficient  to  excuse  the  witness  from  testifying  that  he  may,  in  his  own 
mind,  think  his  answer  to  the  question  might,  by  possibility,  lead  to  a  criminal 
charge  against  him,  or  tend  to  convict  him  of  it  if  made.  The  court  must  be  able 
to  perceive  that  there  is  reasonable  ground  to  apprehend  danger  to  the  witness  from 
his  being  compelled  to  answer.  U.  S.  v.  McCarty,  18  F.  R.,  87. 

Upon  a  trial  of  a  cadet  of  the  Military  A  cademy,  the  court  (against  the  objection 
of  the  accused)  required  another  cadet,  introduced  as  a  witness  for  the  prosecution, 
to  testify  as  to  facts  which  would  tend  to  criminate  him.  Held  that  such  action  was 
erroneous,  the  not  answering  in  such  cases  being  a  privilege  of  the  witness  only, 
who  (whether  or  not  objection  were  made)  could  refuse  to  testify,  and  who,  if  igno- 
rant of  his  rights,  should  be  instructed  therein  by  the  court.  (Dig.  Opin.  J.  A.  Gen., 
400,  par.  27.) 

At  a  trial  of  a  cadet  of  the  Military  Academy,  the  accused,  while  on  the  stand  as  a 
witness,  was  advised  by  the  court  that  while  it  was  his  privilege  to  refuse  to  answer 
any  question  that  might  tend  to  criminate  him,  yet  the  court  would  "put  its  own 
interpretation"  on  the  fact  of  his  refusing.  Held  a  grave  error,  which  might  well 
induce  the  disapproval  of  the  finding  and  sentence  adjudged.  (Ibid.,  par.  28.) 

In  the  case  of  Tucker  v.  United  States  (151  U.  S.,  164,  168)  the  Supreme  Court  of  the 
United  States  has  placed  an  interpretation  upon  certain  clauses  of  section  860,  Revised 
Statutes.  That  section  contains  the  requirement  that  "no  pleading  of  a  party,  nor 
any  discovery  or  evidence  obtained  from  a  party  or  witness  by  means  of  a  judicial 
proceeding  in  this  or  any  foreign  country,  shall  be  given  in  evidence,  or  in  any  man 
per  used  against  him  or  his  property  or  estate,  in  any  court  of  the  United  States, 
in  any  criminal  proceeding,  or  for  the  enforcement  of  any  penalty  or  forfeiture:  Pro- 
vided, That  this  section  shall  not  exempt  any  party  or  witness  from  prosecution  and 
punishment  for  perjury  committed  in  discovering  or  testifying  as  aforesaid."  In  its 
decision  the  court  held  that  "  pleadings  of  parties"  are  the  allegations  made  by  the 
parties  to  a  civil  or  criminal  case  for  the  purpose  of  definitely  presenting  the  issue 
to  be  tried  and  determined  between  them.  "  Discovery  or  evidence  obtained  from  a 
witness  by  means  of  a  judicial  proceeding  "  includes  only  facts  or  papers  which  the 
party  or  witness  is  compelled  by  subpoena,  interrogatory,  or  other  judicial  process  to 
disclose,  whether  he  will  or  no,  and  is  inapplicable  to  testimony  voluntarily  given  or 
to  documents  voluntarily  produced.  The  clause  as  to  discovery  or  evidence  is  con- 
ceived in  the  same  spirit  as  the  fifth  amendment  of  the  Constitution,  declaring  that 
"no  person  shall  be  compelled  in  any  criminal  case  to  be  a  witness  against  himself;" 
and  as  the  act  of  March  16,  1878  (20  Stat.  L.,  30),  enacted  that  a  defendant  in  any  crimi- 
nal case  may  be  a  witness  at  his  own  request,  but  not  otherwise,  and  that  his  failure 
to  make  such  request  shall  not  create  any  presumption  against  him.  Tucker  v.  U.  S., 
151  U.S.,  164, 168;  Boyd  v.  U.  S.,  116  U.S.,  616;  Wilson  v.  U.S.  ,149  U.S.,  60;  Lees  v. 
U.  S.,  150  U.  S.,  476.  No  statute  which  (like  section  860,  R.  S.)  leaves  the  party  or 
witness  subject  to  prosecution,  after  he  answers  the  criminating  question  put  to 
him,  can  have  the  effect  of  supplanting  the  privilege  conferred  by  the  Constitution. 
Counselman  v.  Hitchcock,  142  IT.  S.,  547. 

The  immediate  object  of  the  legislation  of  February  25,  1868,  from  which  section 
860,  R.  S.,  is  taken,  was  to  protect  against  certain  forfeitures  agents  of  the  Confed- 
erate States  whose  testimony  in  regard  to  assets  of  the  Confederacy  it  was  desired 
to  obtain  abroad.  (Congressional  Globe,  2d  sess..  40th  Cong.,  part  2,  p.  1334.) 

The  act  of  March  16,  1878  (20  Stat.  L.,  30),  having  provided  that  a  person  charged 
with  the  commission  of  a  crime  may,  at  his  own  request,  be  a  competent  witness  in 
the  trial,  but  that  "his  failure  to  make  such  request  shall  not  create  .iny  presumption 
against  him, "  all  comment  upon  such  failure  must  be  excluded  from  tfie  jury.  Wil- 
son v.  U.  S.,  149  U.  S.,  60.  Such  failure  to  testify  is  not  to  create  a  presumption  of 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  521 


DOCUMENTARY  EVIDENCE. 

1347.  Copies  of  any  books,  records,  papers,  or  documents 
m  any  of  the  Executive  Departments,  authenticated  under  and  papers. 

J  _      Sept.  15,   1789, 

c.  14,  s.  5,  v.  1,  p. 

guilt.  U.  S.  v.  Pendergrast,  32  Fed.  Rep.,  198  When  such  an  accused  person  elects  69;  Feb  22,  1849, 
to  testify  in  his  own  behalf,  his  testimony  may  be  impeached.  U.  S.  v.  Brown,  40  c.  61,  s.  3,  v.  9,  p. 
Fed.  Rep.,  437.  347  ;  May  31,  1854, 

An  accused  person  can  not  testify  in  his  own  behalf  if  incompetent  to  testify  as  c.  60,  s.  2,  v.  10,  p. 
a  witness  for  any  cause.    U.  S.  v.  Hollis,  43  Fed.  Rep.,  248.  297. 

Pardon  restores  competency  to  testify.    Logan  v.  U.  S.,  144  TJ.  S.,  263  ;  Boyd  v.  TJ.  S.,     Sec.  882,  R.  S. 
142  U.  S.,  450. 

If  he  waives  his  privilege  as  to  one  act,  he  does  so  fully  in  relation  to  that  act. 
But  he  does  not  thereby  waive  his  privilege  of  refusing  to  reveal  other  acts,  wholly 
unconnected  with  the  act  of  which  he  has  spoken,  even  though  they  be  material  to 
the  issue.  Low  v.  Mitchell,  18  Me.,  372;  Tillson  v.  Bowley.  8  Green'l.,  163. 

Where  a  witness  has  voluntarily  answered  as  to  material  criminating  facts,  it  is 
held  with  uniformity  that  he  can  not  then  stop  short  and  refuse  further  explanation, 
but  must  disclose  fully  what  he  has  attempted  to  relate.  This  view  is  adopted  by 
the  text-writers,  and  is  very  well  explained  in  several  of  the  authorities,  where  the 
principle  is  laid  down  and  enforced.  1  Starkie  Evid.  (9th  Am.  ed.)  ;  Roscoe  8  Grim. 
Ev.,  174;  1  Greenl.,  sec.  451;  2  Phill.  Ev.,  935;  2  Russ.  Cr.,  931;  Coburn  v.  Odell,  10 
Foster,  540;  State  v.  K.,  4  N.  H.,  562;  State  v.  Foster,  3  Foster,  348;  Foster  v.  Pierce, 
11  Gush.,  437;  Brown  v.  Brown,  5  Mass.,  320;  Amherst  v  Hollis,  9  N.  H.,  107;  Low 
v.  Mitchell,  18  Me.,  372,  Chamberlain  v  Willson.  12  Vt.,  491;  People  v.  Lohmann,  2 
Barb.  S.  C.,  216;  Norfolk  r.Gaylord,  28  Conn.,  309. 

The  testimony  of  an  accused  party  is  competent  only  when  presented  as  author- 
ized by  the  act  of  March  16,  1878,  chapter  37,  viz,  when  the  party  himself  requests 
to  be  admitted  to  testify.  But  such  testimony  is  not  excepted  from  the  ordinary 
rules  governing  the  admissibihty  of  evidence,  nor  from  the  application  of  the  usual 
tests  of  cross-examination,  rebuttal,  etc.  (Dig.  Opin.  J.  A.  Gen.,  p.  398,  par.  14.)  See, 
also,  MANUAL  FOR  COURTS-MARTIAL,  p.  40,  par.  2. 

It  was  heretofore  an  established  rule  that  accused  parties  could  not  legally  testify 
as  witnesses  before  military  courts,  (a)  But  now,  by  the  act  of  March  16,  1878,  chapter 
37,  it  is  expressly  provided  that  at  trials,  not  only  before  the  courts  of  the  United 
States,  but  before  courts  martial  and  courts  of  inquiry,  "the  person  charged  shall,  at 
his  own  request,  but  not  otherwise,  be  a  competent  witness."  It  is  added:  "And 
his  failure  to  make  such  request  shall  not  create  any  presumption  against  him." 
But  parties  testifying  under  this  act  have  no  exceptional  status  or  privileges  ;  they 
must  take  the  stand  and  be  subject  to  cross-examination  like  other  witnesses.  The 
submission  by  the  accused  of  a  sworn  written  statement  is  not  a  legitimate  exercise 
of  the  authority  to  testify  conferred  by  the  statute,  and  such  a  statement  should  not 
be  admitted  in  evidence  by  the  court.  (&)  (Ibid.,  749,  par.  2.) 

COMPETENCY  OF  WITNESSES. 

A  wife  is  not  a  competent  witness  for  or  against  a  person  accused  of  crime,  on  his 
trial.  Comment  on  her  absence  by  the  district  attorney  held  to  be  reversible  error. 
Graves  v.  U.  S.,  150  U.  S.,  118  ;  U.  S.  v.  Jones,  32  Fed.  Rep.,  569. 

It  has  been  uniformly  held  that  the  wife  of  a  person  on  trial  before  a  court-martial 
could  not  properly  be  admitted  as  a  witness  for  or  against  him  ;  (c)  and  the  statute 
authorizing  accused  parties  to  testify  does  not  affect  this  rule.  The  wife,  however, 
of  an  officer  or  soldier  may  be  admitted  to  testify  in  his  case  before  a  court  of  inquiry, 
the  proceeding  before  such  a  body  not  being  a  trial,  but  an  investigation  merely. 
Where  a  court-martial  refused  to  admit  in  evidence  (as  being  incompetent)  the 
testimony  of  the  wife  of  the  prosecuting  witness,  held  that  its  action  was  entirely 
erroneous,  no  legal  objection  existing  to  the  competency  of  such  a  person.  (Dig. 
Opin.  J.  A.  Gen.,  750,  par.  3.)  See,  also,  MANUAL  FOR  COURTS-MARTIAL,  p.  40,  par.  3. 

An  insane  person  is  no  more  competent  as  a  witness  before  a  court-martial  than  at 
common  law.  Testimony  admitted  of  a  person  shown  to  be  insane  should  be  stricken 
out  on  motion  made.  (Dig.  Opin.  J.  A.  Gen.,  399,  par.  23.) 

A  person  who  is  insane  at  the  time  is  incompetent  as  a  witness.  An  objection, 
however,  to  a  witness  on  account  of  alleged  insanity  will  not  properly  be  allowed, 
unless  sustained  by  clear  proof,  a  man  being  always  presumed  to  be  sane  till  proven 
to  be  otherwise.  (Ibid.,  751,  par.  8.) 

A  wife  is  not  a  competent  witness  to  prove  a  charge  of  failing  to  support  her,  for 
which  her  husband  is  on  trial.  (Ibid.,  399,  par.  21.) 

It  is  no  objection  to  the  competency  of  a  witness  that  he  is  the  officer  upon  whom 
will  devolve  the  duty  of  reviewing  authority  when  the  proceedings  are  terminated. 
(Ibid.  ;  751,  par.  6.) 

It  is  no  objection  to  the  competency  of  a  witness  that  his  name  is  not  on  the  list  of 
witnesses  appended  to  the  charges  when  served.  The  prosecution  is  not  obliged  to 
furnish  any  list  of  witnesses,  nor,  where  one  is  furnished,  to  confine  itself  to  the 

a  See  G.  C.  M.  O.  3,  H.  Q.  A.,  1870,  in  which  is  incorporated  an  opinion  of  the  Judge- 
Advocate-General  on  the  subject. 

b  See  the  general  orders  cited  in  the  note  to  "Evidence"  —  a  co-conspirator  is  a  com- 
petent witness  upon  the  trial  of  an  indictment  for  conspiracy.  U.  S.  v.  Sacia,  2  Fed. 
Rep.,  754.  The  evidence  of  an  accomplice,  though  uncorroborated,  is  to  be  considered 
for  what  it  is  worth.  U.  S.  v.  Hemming,  18  ibid.,  907. 

cNor  will  the  testimony  of  the  wifeof  an  accused  be  admissible  in  favorof  or  against 
a  party  jointly  charged  with  him,  where  her  testimony  will  be  material  to  the  merits 
of  the  question  of  the  guilt  or  innocence  of  her  husband.  See  Territory  v.  Paul,  2 
Montana,  314. 


522  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

witnesses  thus  specified.  The  fact  that  material  testimony  is  given  by  an  unex- 
pected witness  may  indeed  constitute  ground  for  an  application  by  the  accused 
(under  article  93)  for  further  time  for  the  preparation  of  his  defense.  (Ibid.,  par.  7.) 

The  fact  that  a  parly  is  a  public  enemy  of  the  United  States,  or  has  engaged  in  giv- 
ing aid  to  the  enemy,  does  not  affect  the  competency  of  his  testimony  as  a  witness 
before  a  court-martial.  "Where  testifying,  however,  in  time  of  war,  either  in  favor 
of  a  person  in  the  enemy's  service  or  an  ally  of  or  sympathizer  with  the  enemy,  or 
against  a  Federal  officer  or  soldier,  his  statements  (like  those  of  an  accomplice)  are 
ordinarily  to  be  received  with  caution  unless  corroborated.  The  fact  that  a  party  is 
under  a  political  disability  is  not  one  which  goes  to  his  competency  if  offered  as  a 
witness.  So  the  fact  that  a  witness  has  been  convicted  of  desertion  may  impair  hia 
credibility,  but  can  not  aflect  his  competency.  (Ibid.,  397,  par.12.) 

Desertion  is  not  a  felony  and  does  not  render  a  witness  incompetent  at  common 
law  or  before  a  court-martial.  Nor  does  the  loss  of  citizenship  upon  conviction  of 
desertion,  under  sections  1996  and  1998,  Revised  Statutes,  have  such  effect,  the  com- 
petency of  a  witness  not  depending  upon  his  citizenship.  A  pardon  of  a  person 
thus  convicted  would  not  therefore  add  to  his  competency.  But  where  it  was  pro- 
posed to  introduce  such  a  person  as  a  material  witness  for  the  prosecution  in  an  im- 
portant case,  advised  that  it  would  be  desirable  to  remit  the  unexecuted  portion  of 
his  sentence,  if  any.  (Ibid.,  399.  par.  24.) 

Where  a  conviction  (of  rape)  rested  mainly  on  the  testimony  of  the  victim,  a  child 
of  8  years  of  age,  held  that  the  competency  of  the  witness  was  doubtful,  and  that 
the  trial  should  have  been  suspended  and  the  child  instructed,  (a)  Where  a  court- 
martial  received  the  testimony  of  a  female  child  of  3£  years  without  swearing  her, 
held,  that  it  had  wholly  exceeded  its  authority,  unsworn  testimony  being  entirely 
incompetent  in  any  case.  (Ibid.,  399,  par.  22.) 

The  president  or  any  member  of  a  court-martial,  as  also  the  judge-advocate,  may 
legally  give  testimony  before  the  court.  That  the  court,  at  the  time  of  a  member's 
testifying,  is  composed'of  but  five  members  will  not  affect  the  validity  of  the  pro- 
ceedings, since  in  so  testifying  he  does  not  cease  to  be  a  member.  It  is  in  general, 
however,  most  undesirable  that  the  judge-advocate,  and  still  more  that  a  member, 
should  appear  in  the  capacity  of  a  witness,  except  perhaps  where  the  evidence 
to  be  given  relates  simply  to  the  good  character  or  record  of  the  accused.  (Ibid., 
p.  750,  par.  5.) 

THE  RULES  OF  EVIDENCE— MISCELLANEOUS  PROVISIONS. 

Courts-martial,  in  the  absence  of  any  specific  statutory  rules,  are  in  general  gov- 
erned by  the  rules  of  evidence  of  the  common  law.  (Dig.  Opiii.  J.  A.  Gen.,  398,  par.  16.) 

Courts-martial  should  in  general  follow,  so  far  as  apposite  to  military  cases,  the 
rules  of  evidence  observed  by  the  civil  courts,  and  especially  the  courts  of  the  United 
States,  in  criminal  cases,  (b)  They  are  not  bound,  however,  by  any  statute  in  this 
particular,  and  it  is  thus  open  to  them,  in  the  interests  of  justice,  to  apply  these 
rules  with  more  indulgence  than  the  civil  courts — to  allow,  for  example,  more  latitude 
in  the  introduction  ot  testimony  and  in  the  examination  and  cross-examination  of 
witnesses  than  is  commonly  permitted  by  the  latter  tribunals.  In  such  particulars, 
as  persons  on  trial  by  courts-martial  are  ordinarily  not  versed  in  legal  science  or 
practice,  a  liberal  course  should  in  general  be  pursued,  and  an  over-technicality  be 
avoided,  (c)  (Ibid.  393,  par.  1.) 

The  law  by  which  the  admissibility  of  testimony  in  criminal  cases  in  the  courts  of 
the  United  States  nnist  be  determined  is  the  law  of  the  State,  as  it  was  when  these 
courts  were  established  by  the  judiciary  act  of  1789.  They  have  uniformly  acted 
upon  this  construction  of  the  judiciary 'act  of  1789  and  the  crimes  act  of  1790,  and  it 
has  thus  been  sanctioned  by  a  practice  of  sixty  years.  U.  S.  v.  Reid,  12  How.,  36] ,  363, 
366 ;  Logan  v.  U.  S.,  144  U.  S.,  263,  300. 

How  applied. — The  rules  of  evidence  should  be  applied  by  military  courts  irrespec- 
tive of  the  rank  of  the  person  to  be  affected.  Thus  a  witness  for"  the  prosecution, 
whatever  be  his  rank  or  office,  may  always  be  asked,  on  cross-examination,  whether 
he  has  not  expressed  animosity  toward  the  accused,  as  well  as  whether  he  has  not  on 
a  previous  occasion  made  a  statement  contradictory  to  or  materially  different  from 
that  embraced  in  his  testimony.  Such  questions  are  admissible  by  the  established 
law  of  evidence,  and  imply  no  disrespect  to  the  witness,  nor  can  the  witness  properly 
decline  to  answer  them  on  the  ground  that  it  is  disrespectful  to  him  thus  to  attempt 
to  discredit  him.  (d)  (Ibid.,  par.  2.) 

Character. — Evidence  of  the  good  character,  record,  and  services  jf  the  accused  as 
an  officer  or  soldier  is  admissible  in  all  military  cases  without  distinction—  in  cases 
where  the  sentence  is  mandatory  as  well  as  those  where  it  is  discretionary,  upon  con- 
viction. For,  where  such  evidence  can  not  avail  to  affect  the  measure  of  punish- 
ment, it  may  yet  form  the  basis  of  a  recommendation  by  the  members  of  the  court, 
or  induce  favorable  action  by  the  reviewing  officer  whose  approval  is  necessary  to 
the  execution  of  the  sentence.  Where  such  evidence  is  introduced,  the  prosecution 
may  offer  counter  testimony,  but  it  is  an  established  rule  of  evidence  that  the  prose- 
cution can  not  attack  the  character  of  the  accused  till  the  latter  has  introduced  evi- 
dence to  sustain  it,  and  has  thus  put  it  in  issue.  (Ibid.,  394,  par.  4.) 

It  is  in  general  competent,  on  trials  by  court-martial,  for  the  accused  to  put  in 
evidence  any  facts  going  to  extenuate  the  offense  and  reduce  the  punishment,  as 
the  fact  that  he  has  been  held  in  arrest  or  confinement  an  unusual  period  before 
trial,  the  fact  that  he  has  already  been  subjected  to  punishment  or  special  discipline 

ol  Greenleaf  on  Evidence,  section  367. 

6  See  3  Greenl.  Ev.,  sec.  476;  Lebanon  v.  Heath,  47  N".  Hamp.,  359;  People  v.  Van 
Allen,  55  N.  York,  39;  2  Opin.  Att.  Gen.,  343;  Grant  v.  Gould,  2  H.  Black.,  87;  1 
Me  Arthur,  47;  Harcourt,  76;  DeHart,  334;  O'Brien.  169;  G.  O.  51,  Middle  Depart- 
ment, 1865;  G.  C.  M.  O.  60,  Department  of  Texas,  1879;  G.  C.  M.  0. 3, 52,  Department 
of  the  East,  1880. 

c  Compare  the  views  expressed  in  G.  C.  M.  O.  32,  War  Department,  1872;  G.  C.  M. 
O.  23,  Department  of  Texas,  1873;  G.  C.  M.  O.  60,  Department  of  California,  1873. 

d  See  opinion  of  the  Judge- Advocate-General,  as  adopted  by  the  President,  in  G. 
C.  M.  O.  66,  Headquarters  of  Army,  1879 ;  and  compare  remarks  of  reviewing  officers, 
in  G.  0. 11,  Department  of  California,  1865;  G.  C.  M.  O.  31,  Department  of  Dakota, 
1869 ;  G.  C.  M.  0. 8,  Fourth  Military  District,  1867. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      523 

on  account  of  his  offense,  the  fact  that  his  act  was  in  a  measure  sanctioned  by  the 
act  or  practice  of  superior  authority,  etc.  (Ibid.,  398,  par.  15.) 

Weight  of  evidence.— The  weight  of  evidence  does  not  depend  upon  the  number  of 
the  witnesses.  A  single  witness,  whose  statements,  manner,  and  appearance  on  the 
stand  are  such  as  to  commend  him  to  credit  and  confidence,  will  sometimes  properly 
outweigh  several  less  acceptable  and  satisfactory  witnesses,  (a)  But  a  court-martial 
can  not  properly  exclude  from  consideration  the  testimony  of  a  witne3s  because  it  is 
diffuse  and  inconclusive  (peculiarities  which  may  result  from  embarrassment  or  in- 
felicity of  expression),  provided  it  be  pertinent  to  the  issue.  (Ibid.,  394,  par.  3.) 

Leading  questions.— In  commencing  the  examination  of  a  witness,  it  ia  a  leading 
of  the  witness,  and  objectionable,  to  read  to  him  the  charge  and  specification  or 
specifications,  since  he  is  thus  instructed  as  to  the  particulars  in  regard  to  which  he 
is  to  testify  and  which  he  is  expected  to  substantiate,  (b)  So  to  read  or  state  to  him 
in  substance  the  charge,  and  ask  him  "  what  he  knows  about  it,  '  or  in  terms  to  that 
effect,  is  loose  and  objectionable  as  encouraging  irrelevant  and  hearsay  testimony. 
The  witness  should  simply  be  asked  to  state  what  was  said  and  done  on  the  occasion, 
etc.  A  witness  should  properly  also  be  examined  on  specific  interrogatories,  and 
not  be  called  upon  to  make  a  general  statement  in  answer  to  a  single  general  ques- 
tion, (c)  (Ibid.,  394,  par.  5.) 

Opinion.— Upon  a  trial  where  the  offense  is  drunkenness  or  drunken  conduct, 
charged  under  article  62,  or  drunkenness  on  duty,  charged  under  article  38,  it  is  not 
essential  to  confine  the  testimony  to  a  description  of  the  conduct  and  demeanor  of 
the  accused,  but  it  is  admissible  to  ask  a  witness  directly  if  the  accused  "was  drunk, ' ' 
or  for  a  witness  to  state  that  the  accused  "was  drunk,'"'  on  the  occasion  or  under  the 
circumstances  charged.  Such  a  statement  is  not  viewed  by  the  authorities  as  of  the 
class  of  expressions  of  opinion  which  are  properly  ruled  out  on  objection  unless 
given  by  experts,  but  as  a  mere  statement  of  a  matter  of  observation  palpable  to 
persons  in  general,  and  so  proper  to  be  given  by  any  witness  as  a  fact  in  his  knowl- 
edge, (d)  (Ibid.,  395,  par.  6.) 

A  statement  to  the  effect  that  a  person  was  intoxicated  is  not  inadmissible  in  evi- 
dence as  being  an  expression  of  an  opinion.  Whether  a  person  is  drunk  or  sober  is 
"a  fact  patent  to  the  observation  of  all,  requiring  no  scientific  knowledge.'  (e)  Ibid.,) 
400,  par.  25.) 

An  officer  of  the  Quartermaster  Department  was  admitted  by  a  court  martial  to 
testify  as  an  "expert  "  in  regard  to  the  proper  performance  of  his  duties  by  a  chief 
quartermaster  of  a  military  department.  Held  that  such  testimony  was  inadmis- 
sible and  should  have  been  ruled  out;  the  subject  being  one  regulated  by  law  and 
orders,  and  the  witness  being  in  no  proper  sense  an  expert.  (Ibid.,  par.  26.) 

Refreshing  memory.— Where  a  witness  for  the  prosecution  was  permitted  by  a 
court-martial  to  temporarily  suspend  his  testimony  and  leave  the  court  room  for  the 
purpose  of  refreshing  his  memory  as  to  certain  dates,  held  that  such  action  was 
irregular  and  the  further  testimony  of  the  witness  as  to  such  dates  inadmissible. 
By  the  course  pursued  the  court  and  accused  were  prevented  from  knowing  by  what 
means  the  memory  of  the  witness  had  been  refreshed— whether,  for  instance,  it  may 
not  have  been  refreshed  by  oral  statements  of  some  person  or  persons.  (Ibid.,  399, 
par.  19.) 

Confessions. — A  confession  is  competent  evidence  when  free  and  voluntary ;  other- 
wise where  made  through  the  influence  of  hope  and  fear.  (/)  So  where  an  officer 
admitted  to  a  superior,  in  writing,  the  commission  of  a  military  offense  and  promised 
not  to  repeat  the  same,  under  the  well-founded  hope  and  belief  that  a  charge  which 
had  been  preferred  against  him  therefor  would  be  withdrawn,  held  that,  in  case  he 
were  actually  brought  toHrial  upon  such  charge,  the  admission  thus  made  would 
not  properly  be  received  in  evidence  against  his  objection.  Confessions  made  by 
private  soldiers  to  officers  or  noncommissioned  officers,  though  not  shown  to  have 
been  made  under  the  influence  of  promise  or  threat,  should  yet,  in  view  of  the  mili- 
tary relations  of  the  parties,  be  received  with  caution,  (g)  Mere  silence  on  the  part 
of  an  accused,  when  questioned  as  to  his  supposed  offense,  is  not  to  be  treated  as  a 
confession,  (h)  (Ibid.,  397,  par.  13.) 

A  confession  that  he  had  deserted,  made  by  an  alleged  deserter  to  a  police  officer, 
who,  on  arresting  him.  assured  him  that  if  he  told  the  truth  he  (the  officer)  would  give 
him  an  opportunity  to  escape  before  being  delivered  up  to  the  military  authorities, 
held  clearly  not  admissible  in  evidence,  as  having  been  induced  by  promise  of  favor 
on  the  part  of  a  person  in  authority.  (Ibid.,  399,  par.  20.) 

PRIVILEGED    COMMUNICATIONS. 

Official  communications  between  the  heads  of  the  Departments  of  the  Govern- 
ment and  their  subordinate  officers  are  privileged.  Were  it  otherwise  it  would  be 
impossible  for  such  superiors  to  administer  effectually  the  public  affairs  with  which 
they  are  intrusted.  (Ibid.,  398,  par.  18.) 

PRESUMPTION  AS  TO  PERFORMANCE  OF  DUTY, 

The  law  presumes  that  public  officers  duly  perform  their  official  functions,  and 
this  presumption  continues  till  the  contrary  is  shown.  (Ibid.,  398,  par.  17.) 

a  Compare  Rudolph  v.  Lane,  57  Ind.,  115;  McCrum  v.  Corby,  15  Kans.,  117. 

b  Compare  G.  0. 12,  Department  of  the  Missouri,  1862 ;  G.  0. 36,  ibid.,  1863 ;  G.  0. 29. 
Department  of  California,  1865;  G.  0. 67,  Department  of  the  South,  1874. 

cSee  G.  C.  M.  0. 14,  24,  Department  of  Dakota,  1877. 

d  People  v.  Eastwood,  14  1ST.  York,  562;  Stacy  ?;.  Portland  Pub.  Co.,  68  Maine  279; 
Sydleman  v.Beckwith,43  Conn.,  12;  State  v.  Huxford,  47  Iowa,  16;  G.O.42,  Depart- 
ment of  the  Platte,  1871. 

e Lawson  on  Exp.  and  Opin.  Ev.,  p.  473,  et  seq. 

/United  States  v.  Pumphreys,  1  Cranch  C.  C.,  74;  TJ.  S.  v.  Hunter,  ibid.,  317;  U.  S. 
w.Charles,  2  ibid.,  76;  U.  S.  v.  Pocklington,  ibid.,  293;  TJ.  S.  v.  Nott,  1  McLean,  499; 
U.  S.  v.  Cooper,  3  Qu.  L.  J,  42. ;  Sparf  and  Hausen  v.  U.  S.,  156  U.  S.,  51. 

g  See  G.  C.  M.  O.  3,  War  Department,  1876;  G.  O.  54,  Department  of  Dakota,  1867. 
And  compare  Cady  v.  State,  44  Miss.,  332. 

h  See  Campbell  v.  State,  55  Ala.,  80. 


524  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

the    seals  of  such  Departments,  respectively,    shall  be 

admitted  in  evidence  equally  with  the  originals  thereof.1 

copies  of  rec-     1348.  Copies  of  any  documents,  records,  books,  or  papers 

office8of  Solicitor  in  the  office  of  the  Solicitor  of  the  Treasury,  certified  by 

°  Feb.  2^1849,'  him  under  the  seal  of  his  office,  or,  when  his  office  is  vacant, 

347.  '  8   'v   >P  by  the  officer  acting  as   Solicitor  for  the  time,  shall  be 

^hfttf*    ftft^fc    H    ^ 

'  evidence  equally  with  the  originals. 
Transcripts     1349.  When  suit  is  brought  in  any  case  of  delinquency  of 

from  books,  etc., 

of  the  ireasiiry,  a  revenue  officer,  or  other  person  accountable  for  public 

in  suits  against  .    _  .  ,       ,        ,  ,  . 

delinquents.       money,  a  transcript  from  the  books  and  proceedings  of  the 

20,  sari,  V.  i,'p!  Treasury  Department,  certified  by  the    Secretary  or  an 

c^45,^arii!'v813'.  Assistant  Secretary  of  the  Treasury  and  authenticated 

i894,Ti7fv!^83p.  under  the  seal  of  the  Department,  or,  when  the  suit  involves 

21sec.886,R.  s.  the  accounts  of  the  War  or  Navy  Departments,  certified 

by  the  Auditors  respectively  charged  with  the  examination 

of  those  accounts,  and  authenticated  under  the  seal  of  the 

Treasury  Department,  shall  be  admitted  as  evidence,  and 

1  The  master  rolls  on  file  in  the  War  Department  are  official  records,  and  copies  of 
the  same,  duly  certified,  are  primary  evidence  of  the  facts  originally  entered  therein 
and  not  compiled  from  other  sources,  (a)  subject,  of  course,  to  be  rebutted  by  evi- 
dence that  they  are  mistaken  or  incorrect.  So  though  such  rolls  are  evidence  that 
the  soldier  was  duly  enlisted,  or  mustered  into  the  service,  and  is  therefore  duly 
held  as  a  soldier,  they  may  be  rebutted  in  this  respect  by  proof  of  fraud  or  illegality 
in  the  enlistment  or  muster  "(on  the  part  of  the  representative  of  the  United  States 
or  otherwise),  properly  invalidating  the  proceeding  and  entitling  the  soldier  to  a 
discharge.  (But  that  the  entries  in  such  rolls  are  not  proof  of  the  commission  of  an 
offense,  as  desertion,  lor  example,  see  Desertion.)  (Dig.  Opin.  J.  A.  Gen.,  395,  par.  9.) 

A  descriptive  list  is  but  secondary  evidence  and  not  admissible  to  prove  the  facts 
recited  therein.  It  is  not  a  record  of  original  entries,  made  by  an  officer  under  a 
duty  imposed  upon  him  by  law  or  the  custom  of  the  service,  but  'is  simply  a  compila- 
tion of  facts  taken  from  other  records.  (Ibid.,  401,  par.  33.) 

General  orders  issued  from  the  War  Department  or  headquarters  of  the  Army 
may  ordinarily  be  proved  by  printed  official  copies  in  the  usual  form.  The  court 
will,  in  general,  properly  take  judicial  notice  of  the  printed  order  as  genuine  and 
correct.  A  court-martial,  however,  should  not,  in  ge*eral,  accept  in  evidence,  if 
objected  to,  a  printed  or  written  special  order  (which  has  not  been  made  public  to 
the  Army)  without  some  proof  of  its  genuineness  and  official  character,  (b)  (Ibid., 
396,  par.  10.) 

A  court-martial  (by  subpoena  duces  tecum,  through  the  judge-advocate)  may  sum- 
mon a  telegraph  operator  to  appear  before  it  bringing  with  him  a  certain  telegraphic 
dispatch.  But  it  is  beyond  the  power  of  such  court  to  require  such  witness,  against 
his  will,  to  surrender  the  dispatch,  or  a  copy,  to  be  used  in  evidence.  (Ibid.,  401, 
par.  35.) 

In  view  of  the  embarrassment  which  must  generally  attend  the  proof,  before  a 
court-martial,  of  the  sending  or  receipt  of  telegraphic  messages  by  means  of  a  resort, 
by  subpoena  duces  tecum,  to  the  originals  in  possession  of  the  telegraph  company,  (c) 
advised  that  the  written  or  printed  copy,  furnished  by  the  company  and  received 
by  the  person  to  whom  it  is  addressed,  should  in  general  be  admitted  in  evidence  by 
a  court-martial  in  the  absence  of  circumstances  casting  a  reasonable  doubt  upon  its 
genuineness  or  correctness.  But  where  it  is  necessary  to  prove  that  a  telegram 
which  was  not  received,  or  the  receipt  of  which  is  denied  and  not  proven,  was 
actually  duly  sent,  the  operator  or  proper  official  of  the  company,  or  other  person 
cognizant  of  the  fact  of  sending,  should  be  summoned  as  a  witness.  (Ibid.,  p.  396, 
par.  11.) 

The  "enlistment  paper,"  the  "physical  examination  paper,"  and  the  "outline 

a  But  note  in  this  connection  the  ruling  of  the  supreme  court  of  Massachusetts  in 

the  case  of  Hanson  v.  S.  Scituate,  115  Mass.,  336,  that  au  official  certificate  from  the 

,  Adjutant-General's  Office  to  the  effect  that  certain  facts  appeared  of  record  in  that 

office,  but  which  did  not  purport  to  be  a  transcript  from  the  record  itself,  and  was 

therefore  simply  a  personal  statement,  was  not  competent  evidence  of  such  facts. 

It  has  been  held  by  the  United  States  Supreme  Court  in  a  recent  case,  Evanston  v. 
Gunn,  9  Otto,  660,  that  the  record  made  by  a  member  of  the  United  States  Signal 
Corps  of  the  state  of  the  weather  and  the  direction  and  velocity  of  the  wind  on  a 
certain  day  was  competent  evidence  of  the  facts  reported,  as  being  in  the  nature  of 
an  official  record  kept  by  a  public  officer  in  the  discharge  of  a  public  duty. 

b  See  a  similar  ruling  in  G.  O.  121,  Second  Military  District,  1867. 


,        ., 
published  in  the  Southern  Law  Review  for  October,  1879. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  525 

the  court  trying  the  cause  shall  be  authorized  to  grant  judg- 
ment and  award  execution  accordingly.  And  all  copies  of 
bonds,  contracts,  or  other  papers  relating  to,  or  connected 
with,  the  settlement  of  any  account  between  the  United 
States  and  an  individual,  when  certified  by  such  Auditor 
to  be  true  copies  of  the  originals  on  file,  and  authenticated 
under  the  seal  of  the  Department,  may  be  annexed  to  such 
transcripts,  and  shall  have  equal  validity,  and  be  entitled 
to  the  same  degree  of  credit  which  would  be  due  to  the  orig- 
inal papers  if  produced  and  authenticated  in  court:  Pro- 
vided, That  where  suit  is  brought  upon  a  bond  or  other 
sealed  instrument,  and  the  defendant  pleads  "non  est  fac- 
tuin,''  or  makes  his  motion  to  the  court,  verifying  such  plea 
or  motion  by  his  oath,  the  court  may  take  the  same  into  con- 
sideration, and,  if  it  appears  to  be  necessary  for  the  attain- 
ment of  justice,  may  require  the  production  of  the  original 
bond,  contract,  or  other  paper  specified  in  such  affidavit.1 

card  "  are  original  writings  made  by  officers  in  the  performance  of  duty  and  compe- 
tent evidence  of  the  facts  recited  therein.  Copies,  authenticated  under  the  seal  of  the 
War  Departement,  according  to  section  882,  Revised  Statutes,  are  equally  admissible 
with  the  originals.  (Ibid.,  401,  par.  31.) 

The  morning  report  book  is  an  original  writing.  To  properly  admit  extracts  in 
evidence,  the  book  should  be  first  identified  by  the  proper  custodian,  and  the  extracts 
then  not  merely  read  to  the  court  by  the  witness,  but  copied,  and  the  copies,  properly 
ver.ted,  attached  as  exhibits  to  the  record  of  the  court.  (Ibid.,  par.  32.) 

Copies  of  pay  accounts  (charged  to  have  been  duplicated)  are  admissible  in  evi- 
dence where  the  accused  has  by  his  own  act  placed  the  originals  beyond  the  reach, 
of  process  and  fails  to  produce  them  in  court  on  proper  notice.  So  where  the 
originals  are  in  the  hands  of  a  person  who  has  left  the  United  States,  so  that  they 
can  not  be  reached,  on  notice  to  the  accused  to  produce  them,  or  otherwfse.  (Ibid'., 
par.  34.) 

To  the  admission  in  evidence  of  a  letter  written  and  signed  by  the  accused  (of 
which  the  introduction  is  contested)  proof  of  his  handwriting  is  necessary.  Evi- 
dence of  handwriting  by  comparison  is  not  admissible  at  common  law  except  where 
the  standard  of  comparison  is  an  acknowledged  or  proved  genuine  writing  already 
in  evidence  \n  the  case.  A  writing  not  in  evidence  and  simply  offered  to  be  used  as 
a  standard  is  not  admissible.  (Ibid.,  par.  36  ) 

At  the  trial,  in  1894,  of  an  officer  charged  with  a  disorder  and  breach  of  discipline 
which  involved  the  killing  by  him  of  another  officer,  there  was  ottered  in  evidence, 
on  the  part  of  the  accused,  to  exhibit  the  character  and  disposition  of  the  officer 
killed,  a  copy  of  a  gener.-d  court-martial  order  of  1872,  setting  forth  certain  charges 
alleging  dishonest  and  unbecoming  conduct,  upon  which  the  latter  officer  was  then 
tried  and  convicted,  and  the  findings  of  the  court  thereon.  Held,  that  such  evidence 
was  wholly  inadmissible  for  the  purpose  designed.  (Ibid.,  402,  par.  37.) 

Strictly  speaking,  a  press  copy  is  secondary  to  the  original  document  from  which 
it  is  taken.  Such  a  copy  is  receivable  in  evidence  011  proof  of  the  loss  of  the  original. 
At  the  best,  however,  it  continues  secondary ;  hence  it  has  been  held  that  a  copy  can 
be  produced  from  a  press  copy  of  a  lost  writing  without  producing  the  principal 
copj^.  Photographs  and  other  reproductions  are  secondary.  (1  Wharton  Ev., 
sec.  93.) 

Except  by  the  consent  of  the  opposite  party,  the  testimony  contained  in  the  record 
of  a  previous  trial  of  the  same  or  a  similar  case  can  not  properly  be  received  in  evi- 
dence on  a  trial  by  court-martial;  nor  can  the  record  of  a  board  of  investigation 
ordered  in  the  same  case  be— otherwise— so  admitted.  In  all  cases  (other  than  that 
provided  for  by  the  one  hundred  and  twenty-first  article  of  war)  testimony  given 
upon  a  previous  hearing,  if  desired  to  be  introduced  in  evidence  upon  a  trial,  must 
(unless  it  be  otherwise  specially  stipulated  between  the  parties)  be  offered  de  novo 
and  as  original  matter.  (Dig.  Opin.  J.  A.  Gen.,  395,  par.  7.) 

Affidavits  taken  ex  parte,  and  not  as  depositions  under  article  91,  are  in  no  case 
admissible  as  evidence  on  a  trial  by  court-martial,  if  objected  to.  (a)  (Ibid.,  par.  8.) 

1  Walton v. U.S.,  9  Wh.,  651;  U.S.r.  Buf'ord,  3  Pet.,  12;  Smith v. TJ .'S.,  5 Pet.,  292;  Cox 
v.  U.  S.,  6  Pet.,  172  ;  U.  S.  v.  Jones,  8  Pet.,  375:  Gratiot  v.  U.  S.,  15  Pet.,  336;  U.  S.  v. 
Irving,  1  How.,  250;  Hoyt  v.  U.  S.,  10  How.,  109;  Bruce  v.  U.  S.,  17  How.,  437;  U.  S. 
v.  Edwards,  1  McLean,  467;  U.  S.  v.  Hilliard  et  al.,  3  McLean,  324;  U.  S.  v.  Lent,  1 
Paine,  417;  U.  S.  v.  Martin,  2  Paine,  68;  U.  S.  v.  Van  Zandt,  2  Cr.  C.  C.,  328;  U.  S. 
v.  Griffith,  2  Cr.  C.  C.,  336;  U.  S.  v.  Lee,  2  Cr.  C.  C.,  462;  TJ.  S.  v.  Harrill,  1  McAll., 
243;  U.  S.  v.  Mattison,  Gilp.,  44;  U.  S.  v.  Corwin,  1  Bond.  149;  U.  S.  v.  Gaussen,  19 
Wall.,  198. 

a  See  G.  C.  M.  0. 10,  Headquarters  Army,  1879;  G.  0. 21,  Department  of  the  Missouri, 
1863 ;  G.  0. 17,  Department  of  Arkansas,  1866 ;  G.  0. 19,  Third  Military  District,  1867 ; 
G.  0. 49,  Department  of  Dakota,  1871. 


526  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


Vthe     1350.  Upon  the  trial  of  any  indictment  against  any  per- 
in  in-  SOn  for  embezzling  public  moneys,  it  shall  be  sufficient  evi- 

dictmentsforem-  J 

bezziementofdence,  for  the  purpose  of  showing  a  balance  against  such 

public  moneys.  .,/.,,        i        i  i 

Aug.  e,  1846,  c.  person,  to  produce  a  transcript  from  the  books  and  pro- 
Mar'.  2?  HOT,?!  20,'  ceedings  of  the  Treasury  Department,  as  provided  by  the 


&  preceding  section. 


returns     1351.  A  copy  of  any  return  of  a  contract  returned  and 
ofjuene  2  1862  c  n^e(^  *n  ^e  re^urns  office  of  the  Department  of  the  Interior, 
93^  s.  4,  V.  12,'  p.  as  provided  by  law,  when  certified  by  the  clerk  of  the  said 
sec.  sss,  B.  s.  office  to  be  full  and  complete,  and  when  authenticated  by 
the  seal  of  the  Department,  shall  be  evidence  in  any  pros- 
ecution against  any  officer  for  falsely  and  corruptly  swear- 
ing to  the  affidavit  required  by  law  to  be  made  by  such 
officer  in  making  his  return  of  any  contract,  as  required  by 
law,  to  said  returns-office. 
Extracts  from     1352.  Extracts  from  the  Journals  of  the  Senate,  or  of 

the  Journals  ol 

Congress.          the  House  of  Representatives,  and  of  the  Executive  Jour- 

107,  sgi,v  9,  p.'so!  nal  of  the  Senate  when  the  injunction  of  secrecy  is  removed, 

sec.  895,  K.  s.  certified  by  tlie  secretary  of  the  Senate  or  by  the  Clerk  of 

the  House  of  Representatives,  shall  be  admitted  as  evidence 
in  the  courts  of  the  United  States,  and  shall  have  the  same 
force  and  effect  as  the  originals  would  have  if  produced 
and  authenticated  in  court. 

ordspie8tcf  r<in     1353.  Copies  of  all  official  documents  and  papers  in  the 
offices  of  united  office  of  any  consul,  vice-consul,  or  commercial  agent  of  the 

St&tcs     consuls 

etc.  '  United  States,  and  of  all  official  entries  in  the  books  or 

7,  v.  15,  p.  266.  '   '  records  of  any  such  office,  certified  under  the  hand  and  seal 

Sec   896    R   S 

*  of  such  officer,  shall  be  admitted  in  evidence  in  the  courts 
of  the  United  States. 

t£n  o^gisit     1354.  The  acts  of  the  legislature  of  any  State  or  Terri- 
prooef  of  juafchS  tory>  or  of  any  country  subject  to  the  jurisdiction  of  the 
°f  United  States,  shall  be  authenticated  by  having  the  seals 
sucl1  state>  Territory,  or  country  affixed  thereto.    The 
56*8  '22v  21®°V5'  recor(^s  an(l  judicial  proceedings  of  the  courts  of  any  State 
sec.'  906,  B.  si  or  Territory,  or  of  any  such  country,  shall  be  proved  or 
admitted  in  any  other  court  within  the  United  States, 
by  the  attestation  of  the  clerk,  and  the  seal  of  the  court 
annexed,  if  there  be  a  seal,  together  with  a  certificate  of 
the  judge,  chief  justice,  or  presiding  magistrate,  that  the 
said  attestation  is  in  due  form.     And  the  said  records  and 
judicial  proceedings,  so  authenticated,  shall  have  such 
faith  and  credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the  courts 
of  the  State  from  which  they  are  taken.2 

»  U.  S.  v.  Gaussen,19  Wall,  198. 

2  Ferguson  v.  Harwood,  7  Cr.,  408  ;  Mills  v.  Duryea,  7  Cr.,  481  ;  U.  S.  v.  Amedy,  11  Wh., 
392;  Buckner  v.  Finley,  2  Pet.,  592;  Owings  v.  Hull,  9  Pet.  ,627;  Urtetiqui  v.D'Arbel, 


THE   MILITARY  LAWS  OF   THE   UNITED   STATES.  527 

1355.  All  records  and  exemplifications  of  books,  which  orj™°£8  lfertTn 
may  be  kept  in  any  public  office  of  any  State  or  Territory, 


or  of  any  country  subject  to  the  jurisdiction  of  the  United  ^Mar.  27,1804,0. 
States,  110  1  appertaining  to  a  court,  shall  be  proved  or  pp.  298,  299!  Feb. 
admitted  in  any  court  or  office  in  any  other  State  or  Terri-  ie|  p.  4in.' 

Sec   t)0f    R   S 

tory,  or  in  any  such  country,  by  the  attestation  of  the 
keeper  of  the  said  records  or  books,  and  the  seal  of  his 
office  annexed,  if  there  be  a  seal,  together  with  a  certificate 
of  the  presiding  justice  of  the  court  of  the  county,  parish, 
or  district  in  which  such  office  may  be  kept,  or  of  the  gov- 
ernor, or  secretary  of  state,  the  chancellor  or  keeper  of 
the  great  seal,  of  the  State,  or  Territory,  or  country,  that 
the  said  attestation  is  in  due  form,  and  by  the  proper 
officers.  If  the  said  certificate  is  given  by  the  presiding 
justice  of  a  court,  it  shall  be  further  authenticated  by  the 
clerk  or  prothonotary  of  the  said  court,  who  shall  certify, 
under  his  hand  and  the  seal  of  his  office,  that  the  said 
presiding  justice  is  duly  commissioned  and  qualified;  or, 
if  given  by  such  governor,  secretary,  chancellor,  or  keeper 
of  the  great  seal,  it  shall  be  under  the  great  seal  of  the 
State,  Territory,  or  country  aforesaid  in  which  it  is  made. 
And  the  said  records  and  exemplifications,  so  authenti- 
cated, shall  have  such  faith  and  credit  given  to  them  in 
every  court  and  office  within  the  United  States  as  they 
have  by  law  or  usage  in  the  courts  or  offices  of  the  State, 
Territory,  or  country,  as  aforesaid,  from  which  they  are 
taken. 

1356.  The  edition  of  the  Laws  of  the  United  States  pub-  elm  ^n'^S 
lished  by  Little  &  Brown,  shall  be  competent  evidence  of  statutes  to  be 

7  evidence. 

the  several  public  and  private  acts  of  Congress,  and  of  the  10^^  v  g846??' 
several  treaties  therein  contained,  in  all  the  courts  of  law    s'ec.  oo8,'&  si 
and  equity  and  of  maritime  jurisdiction,  and  in  all  the  tri- 
bunals and  public  offices  of  the  United  States,  and  of  the 
several  States,  without  any  further  proof  or  authentication 
thereof.1 

9  Pet.,  700;  McElmoyle,  v.  Cohen,  13  Pet  ,  312;  Stacey  v.  Thrasher,  6  How.,  44;  Bank 
of  Alabama  v.  Dalton,  9  How.,  522;  D'Arcy  v.  Ketchum,  11  How.,  165;  Railroad  v. 
Howard,  13  How.,  307;  Booth  v.  Clark,  17  How.,  322;  Mason  v.  Lawr«>,son,  1  Cr.C.C., 
190  ;  Butord  v.  Hickman,  Hemp.,  232  ;  Craig  v.  Brown,  Pet.  C.  C.,  354  ;  Stewart  v.  Gray, 
Hemp.,  94;  Gardner  v.  Lindo,  1  Or.  C.  C.,  78;  Trigg  v.  Conway,  Hemp.,  538;  Turner  v. 
Waddington,  3  Wash.  C.  C.,  126;  Catlin  v.  Underbill,  4  McL.,  199;  Morgan  v.  Cur- 
tenius,  4  McL.,  366;  Hale  v.  Brotherton,  3  Cr.  C.  C.,  594;  Mewsterv.  Spaldiug,  6  McL., 
24;  Parrot  v.  Habersham,  1  Cr.  C.  C.,  14;  Talcott  v.  Delaware  Ins.  Com.,  2  Wash.  C. 
C.,449;  James  v.  Stookey,  1  Wash.  C.  C.,330;  Bennett  v.  Bennett,  Dist,  Crt.,  Oregon, 
1867. 

1  See,  in  respect  to  the  Revised  Statutes  and  Statutes  at  Large  of  the  United  States, 
paragraphs  402,  415,  419,  422,  and  428,  ante. 


CHAPTER   XXXVI, 


CITIZENSHIP  AND  NATURALIZATION. 


Par. 

1357.  Citizenship  defined. 

1358.  Citizenship  of   children  of 

citizens  born  abroad. 

1359.  Citizenship    of    married 

women. 

1360.  Citizenship  of  persons  born 

in  Oregon. 

1361.  Rights    of   citizenship   for- 

feited by  desertion. 

1362.  Certain  soldiers  and  sailors 

exempted  from  forfeitures 
of  last  section. 

1363.  Avoiding  the  draft. 

1364.  Right  of  expatriation. 

1365.  Protection    to    naturalized 

citizens  in  foreign  states. 

1366.  Release  of  citizens  impris- 

oned by   foreign  govern- 
ments to  be  demanded. 

1367.  Naturalization  of  aliens. 

1368.  Declarations    of  intention, 

how  made. 


Par. 

1369.  Aliens  honorably  discharged 

from  military  service. 

1370.  Aliens  honorably  discharged 

from  the  naval  service. 

1371.  Minor  residents. 

1392.  Widow  and  children  of  de- 
clarants. 

1373.  Aliens  of  African  nativity 
and  descent. 

1374    Residence  required. 

1375.  Alien  enemies  not  admitted. 

1376.  Children  of  persons  natural- 

ized. 

1377.  Police  court  of  District  of 

Columbia  has  no  power  to 
naturalize  aliens. 

1378.  Naturalization  of  seamen. 

1379.  Citizenship  to  be  accorded 

allottees  and  to  Indians 
adopting  civilized  life. 


CITIZENSHIP. 


^citizenship  de-     1357.  All  persons  born  in  the  United  States  and  not  sub- 
Apr.  9,  isee,  c.ject  to  any  foreign  power,  excluding  Indians  not  taxed,  are 
sec.  1992',  R.S^  declared  to  be  citizens  of  the  United  States.1 
ch?idrennoV ciS-     1358>  A11  children  heretofore  born  or  hereafter  born  out 
zTPbr0i4aib802a(c'of  tne  limits  and  jurisdiction  of  the  United  States,  whose 
?eb' 10^855  c1?!5  ^atners  were  or  may  be  at  the  time  of  their  birth  citizens 
s.  i,  V.  io,  p.'ek  'thereof,  are  declared  to  be  citizens  of  the  United  States: 

L'-.  ..     «  <h<h»>    n     c 

'but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States. 

1359.  Any  woman  who  is  now  or  may  hereafter  be  mar- 
7irjb21v1i?'5'ried  to  a  citizen  of  the  United  States,  and  who  might  her- 
be  lawfully  naturalized,  shall  be  deemed  a  citizen.2 

1  Planters'  Bank  v.  St.  John,  1  Woods,  585;  McKay  v.  Campbell,  2  Saw.,  118. 

See,  also,  for  a  definition  of  the  term  "citizen  of  the  United  States,"  the  fourteenth 
amendment  to  the  Constitution. 

2  Kelly  v.  Owen,  7  Wall,  496. 

528 


mSrieTwomen.f 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  529 

1360.  All  persons  borii  in  the  district  of  country  formerly 
known  as  the  Territory  of  Oregon,  and  subject  to  the  juris- 
diction  of  the  United  States  on  the  18th  May,  1872,  are 

citizens  in  the  same  manner  as  if  born  elsewhere  in  the    sec.  i995,R.s. 
United  States. 

1361.  All  persons  who  deserted  the  military  or  naval  zejjjg ht «o(jje«ttj 
service  of  the  United  States  and  did  not  return  thereto  or  tor  desertion, etc. 

Mar.  3,  1865,  c. 

report  themselves  to  a  provost-marshal  within  sixty  days  ?9,  s.  21,  v.  13,  P. 
after  the  issuance  of  the  proclamation  by  the  President,    sec.i996,R.s. 
dated  the  llth  day  of  March,  1865,  are  deemed  to  have  vol- 
untarily relinquished  and  forfeited  their  rights  of  citizen- 
ship, as  well  as  their  right  to  become  citizens  j  and  such 
deserters  shall  be  forever  incapable  of  holding  any  office  of 
trust  or  profit  under  the  United  States,  or  of  exercising  any 
rights  of  citizens  thereof.1 

1362.  No  soldier  or  sailor,  however,  who  faithfully  served    certain   soi- 

diers  and  sailors 

according  to  his  enlistment  until  the  19th  day  of  April,  exempted   from 

,  the  forfeitures  of 

1865,  and  who,  without  proper  authority  or  leave  first  the  last  section. 

.u    L.  ,  July  19,  1867,  c. 

obtained,  quit  his  command  or  refused  to  serve  after  that28,v.i5,p.u. 
date,  shall  be  held  to  be  a  deserter  from  the  Army  or  Navy ;    'sec'  1997>B-S- 
but  this  section  shall  be  construed  solely  as  a  removal  of 
any  disability  such  soldier  or  sailor  may  have  incurred, 
under  the  preceding  section,  by  the  loss  of  citizenship  and 
of  the  right  to  hold  office,  in  consequence  of  his  desertion. 

1363.  Every  person  who  hereafter  deserts  the  military    Avoiding  the 
or  naval  service  of  the  United  States,  or  who,  being  duly    Mar.  a,  ises,  c. 
enrolled,  departs  the  jurisdiction  of  the  district  in  which  49o.8'    'v<    '  p* 

Sii  *     I'MJS    R    S 

he  is  enrolled,  or  goes  beyond  the  limits  of  the  United 
States,  with  intent  to  avoid  any  draft  into  the  military  or 
naval  service,  lawfully  ordered,  shall  be  liable  to  all  the 
penalties  and  forfeitures  of  section  nineteen  hundred  and 
ninety-six.1 

1364.  Whereas  the  right  of  expatriation  is  a  natural  and    Right  of  expa- 
inherent  right  of  all  people,  indispensable  to  the  enjoyment  rjuiy27,  ises,  c. 
of  the  rights  of  life,  liberty,  and  the  pursuit  of  happiness;  223! 8' lfV' 15'  p' 

SPC   1999   R  S 

and  whereas  in  the  recognition  of  this  principle  this  Gov-   k 
eminent  has  freely  received  emigrants  from  all  nations, 
and  invested  them  with  the  rights  of  citizenship;    and  t  .,,., 

whereas  it  is  claimed  that  such  American  citizens,  with 
their  descendants,  are  subjects  of  foreign  states,  owing 
allegiance  to  the  governments  thereof;  and  whereas  it  is 
necessary  to  the  maintenan*  e  of  public  peace  that  this 
claim  of  foreign  allegiance  should  be  promptly  and  finally 
disavowed :  Therefore  any  declaration,  instruction,  opinion, 


1  These  penalties  only  take  effect  upon  conviction  by  court  martial.     Kurtz  v. 
Moffett,  115  U.  S.,  501. 

1919 34 


530  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

order,  or  decision  of  any  officer  of  the  United  States  which 
denies,  restricts,  impairs,  or  questions  the  right  of  expatri- 
ation, is  declared  inconsistent  with  the  fundamental  prin- 
ciples of  the  .Republic. 

naumSzednciti°     1365.  All  naturalized  citizens  of  the  United  States,  while 
zens  in  foreign  jn  foreign  countries,  are  entitled  to  and  shall  receive  from 

states. 


July  27,  1868,  c.  this  Government  the  same  protection  of  persons  and  prop- 
224.  '  erty  which  is  accorded  to  native-born  citizens. 

Sec.  2000,  B.  S. 


1366-  Whenever  it  is  made  known  to  the  President  that 
ernm0enet8ntog0be  anv  c^izen  of  the  United  States  has  been  unjustly  deprived 
demanded^  of  his  liberty  by  or  under  the  authority  of  any  foreign  gov- 

July  ^7,  loDo.  c. 

249,  s.  s,  v.  15,  p.  ernment,  it  shall  be  the  duty  of  the  President  forthwith  to 
Sec.  2001,  B.  s.  demand  of  that  government  the  reasons  of  such  imprison- 
ment; and  if  it  appears  to  be  wrongful  and  in  violation  of 
the  rights  of  American  citizenship,  the  President  shall 
forthwith  demand  the  release  of  such  citizen,  and  if  the 
release  so  demanded  is  unreasonably  delayed  or  refused, 
the  President  shall  use  such  means,  not  amounting  to  acts 
of  war,  as  he  may  think  necessary  and  proper  to  obtain  or 
effectuate  the  release;  and  all  the  facts  and  proceedings 
relative  thereto  shall  as  soon  as  practicable  be  communi- 
cated by  the  President  to  Congress. 


NATURALIZATION. 


Naturalization     1367.  An  alien  may  be  admitted  to  become  a  citizen  of 

of  aliens.  » 

Sec.  2165, B.S.  the  United  States  in  the  following  manner,  and  not  other- 
wise: 
Declaration  of     First.  He  shall  declare  on  oath,  before  a  circuit  or  district 

intention. 

Apr.  u,  1802,  court  of  the  United  States,  or  a  district  or  supreme  court  of 

2,  ^pf*i68, 3io5J  the  Territories,  or  a  court  of  record  of  any  of  the  States 

isefs.2!'  v^l'  p.  having  common-law  jurisdiction,  and  a  seal  and  clerk,  two 

c^^.Vp1!76'  years,  at  least,  prior  to  his  admission,  that  it  is  bona  fide 

his  intention  to  become  a  citizen  of  the  United  States,  and 

to  renounce  forever  all  allegiance  and  fidelity  to  any  foreign 

prince,  potentate,  state,  or  sovereignty,  and,  particularly, 

by  name,  to  the  prince,  potentate,  state,  or  sovereignty  of 

which  the  alien  may  be  at  the  time  a  citizen  or  subject. 

oath-  to  sup-     Second.  He  shall,  at  the  time  of  his  application  to  be 

port  the  Consti-      -,.,,,,  ,       >      „  „   , , 

tution  of  the  admitted,  declare,  on  oath,  before  some  one  or  the  courts 
U Apr?  ISfl&ra,  above  specified,  that  he  will  support  the  Constitution  of 
i5.l.8'8 •1|V'2'p'the  United  States,  and  that  he  absolutely  and  entirely 

1  The  power  of  natiiralizatiou  is  exclusively  in  Congress.  (Chirac  v.  Chirac,  2 
Wheat.,  260.)  Jurisdiction  for  that  purpose  having  been  conferred  by  Congress, 
courts  of  record  in  the  several  States  and  Territories  have  the  power  to  extend  the 
privileges  of  citizenship  to  aliens  hy  an  application  of  the  provisions  of  the  natural- 
ization laws  of  the  United  States.  (Campbell  v.  Gordon,  6  Cr.,  176;  Stark  v.  Chesa- 
peake Ins.  Co.,  7Cr.,420;  Chirac  v.  Chirac,  2  Wheat.,  259,  Osborn  v.  United  States 
Bank,  9  Wheat.,  827;  Sprattv.  Spratt,  4  Pet.,  393.) 

For  a  discussion  of  the  power  of  the  several  States  to  confer  the  privilege  of  State 
citizenship  upon  aliens,  see  Collet  v.  Collet  (2  Dall.,  294). 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      531 

renounces  and  abjures  all  allegiance  and  fidelity  to  every 
foreign  prince,  potentate,  state,  or  sovereignty ;  and,  partic- 
ularly, by  name,  to  the  prince,  potentate,  state,  or  sover- 
eignty of  which  he  was  before  a  citizen  or  subject;  which 
proceedings  shall  be  recorded  by  the  clerk  of  the  court. 
Third.  It  shall  be  made  to  appear  to  the  satisfaction  of  Residence  in 

,.  ,      .jLjL.  ,  United  States  or 

the  court  admitting  such  alien  that  he  has  resided  within  states,  and  good 

the  United  States  five  years  at  least,  and  within  the  State 

or  Territory  where  such  court  is  at  the  time  held,  one  year 

at  least;  and  that  during  that  time  he  has  behaved  as  a 

man  of  good  moral  character,  attached  to  the  principles  of 

the  Constitution  of  the  United  States,  and  well  disposed 

to  the  good  order  and  happiness  of  the  same;  but  the  oath 

of  the  applicant  shall  in  no  case  be  allowed  to  prove  his 

residence.1 

Fourth.  In  case  the  alien  applying  to  be  admitted  to  cit-  it          t 
izenship  has  borne  any  hereditary  title,  or  been  of  any  of  nounced- 
the  orders  of  nobility  in  the  kingdom  or  state  from  which 
he  came,  he  shall,  in  addition  to  the  above  requisites,  make 
an  express  renunciation  of  his  title  or  order  of  nobility  in 
the  court  to  which  his  application  is  made,  and  his  renun- 
ciation shall  be  recorded  in  the  court. 

Fifth.  Any  alien  who  was  residing  within  the  limits  and .  Persons 
under  the  jurisdiction  of  the  United  States  before  the  Sates  before 
twenty-ninth  day  of  January,  one  thousand  seven  hundred 
and  ninety-five,  may  be  admitted  to  become  a  citizen,  on 
due  proof  made  to  some  one  of  the  courts  above  specified, 
that  he  has  resided  two  years,  at  least,  within  the  jurisdic- 
tion of  the  United  States,  and  one  year,  at  least,  immedi- 
ately preceding  his  application,  within  the  State  or  Territory 
where  such  court  is  at  the  time  held ;  and  on  his  declaring 
on  oath  that  he  will  support  the  Constitution  of  the  United 
States,  and  that  he  absolutely  and  entirely  renounces  and 
abjures  all  allegiance  and  fidelity  to  any  foreign  prince, 
potentate,  state,  or  sovereignty,  and,  particularly,  by  name, 
to  the  prince,  potentate,  state,  or  sovereignty  whereof  he 
was  before  a  citizen  or  subject;  and,  also,  on  its  appearing 
to  the  satisfaction  of  the  court,  that  during  such  term  of 
two  years  he  has  behaved  as  a  man  of  good  moral  char- 
acter, attached  to  the  Constitution  of  the  United  States, 
and  well  disposed  to  the  good  order  and  happiness  of  the 
same;  and  where  the  alien,  applying  for  admission  to 

1  By  the  treaty  of  cession  with  Russia,  subjects  of  that  nation  inhabiting  the  Ter- 
ritory of  Alaska  at  the  date  of  the  treaty,  and  continuing  to  remain  such  inhabitants 
for  three  years,  became  thereupon  American  citizens.  But  the  treaty  neither  men- 
tions nor  refers  to  British  subjects  or  the  subjects  of  any  foreign  nation  other  than 
Russia.  Siich  persons,  therefore,  residing  in  the  Territory,  can  become  citizens  only 
in  the  mode  and  form  prescribed  by  the  United  States  naturalization  laws.  (Dig. 
J.  A.  Gen.,  148.) 


532      THE  MILITARY  LAWS  OP  THE  UNITED  STATES. 

citizenship,  has  borne  any  hereditary  title,  or  been  of  any 
of  the  orders  of  nobility  in  the  kingdom  or  state  from  which 
he  came,  on  his,  moreover,  making  in  the  court  an  express 
renunciation  of  his  title  or  order  of  nobility.  All  of  the 
proceedings,  required  in  this  condition  to  be  performed  in 
the  court,  shall  be  recorded  by  the  clerk  thereof, 
persons  resid  Sixth.  Any  alien  who  was  residing  within  the  limits  and 

ing  between  June 

is,  1798,  and  June  under  the  jurisdiction  of  the  United  States,  between  the 
kar.  22, 1816, c.  eighteenth  day  of  June,  one  thousand  seven  hundred  and 
May  24,  1828,  d  ninety-eight,  and  the  eighteenth  day  of  June,  one  thousand 
310! 8'  p'  eight  hundred  and  twelve,  and  who  has  continued  to  reside 

within  the  same,  may  be  admitted  to  become  a  citizen  of 
the  United  States  without  having  made  any  previous 
declaration  of  his  intention  to  become  such;  but  whenever 
any  person,  without  a  certificate  of  such  declaration  of 
intention,  makes  application  to  be  admitted  a  citizen,  it 
must  be  proved  to  the  satisfaction  of  the  court,  that  the 
applicant  was  residing  within  the  limits  and  under  the 
jurisdiction  of  the  United  States  before  the  eighteenth  day 
of  June,  one  thousand  eight  hundred  and  twelve,  and  has 
continued  to  reside  within  the  same;  and  the  residence  of 
the  applicant  within  the  limits  and  under  the  jurisdiction 
of  the  United  States,  for  at  least  five  years  immediately 
preceding  the  time  of  such  application,  must  be  proved  by 
the  oath  of  citizens  of  the  United  States,  which  citizens 
shall  be  named  in  the  record  as  witnesses;  and  such  con- 
tinued residence  within  the  limits  and  under  the  jurisdiction 
of  the  United  States,  when  satisfactorily  proved,  and  the 
place  where  the  applicant  has  resided  for  at  least  five  years, 
shall  be  stated  and  set  forth,  together  with  the  names  of 
such  citizens,  in  the  record  of  the  court  admitting  the 
applicant;  otherwise  the  same  shall  not  entitle  him  to  be 
considered  and  deemed  a  citizen  of  the  United  States, 
i  n? en  tion°  how  1368'  Tliat  tne  declaration  of  intention  to  become  a  citizen 
mFeb  i  1876  c  °^ tne  United  States,  required  by  section  two  thousand  one 
5)  «•  *°vft.2i  „  *  hundred  and  sixty-five  of  the  Kevised  Statutes  of  the  United 

Nf  (',  Liu*),  1C.  S. 

States,  may  be  made  by  an  alien  before  the  clerk  of  any  of 

the  courts  named  in  said  section  two  thousand  one  hundred 

and  sixty-five;  and  all  such  declarations  heretofore  made 

before  any  such  clerk  are  hereby  declared  as  legal  and  valid 

as  if  made  before  one  of  the  courts  named  in  said  section. 

bif  "TsSrged     1369-  Any  alien,  of  the  age  of  twenty-one  years  and  up- 

BerJ?cemilitary  ward,  who  has  enlisted,  or  may  enlist,  in  the  armies  of  the 

2ooU8y2i7Vl8i22'p'  United  States,  either  the  regular  or  the  volunteer  forces, 

69s«c  2166  R  s  an(^  ^as  ^eeu?  or  mav  ^e  hereafter,  honorably  discharged, 

shall  be  admitted  to  become  a  citizen  of  the  United  States, 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  533 

upon  Ms  petition,  without  any  previous  declaration  of  his 
intention  to  become  such ;  and  he  shall  not  be  required  to 
prove  more  than  one  year's  residence  within  the  United 
States  previous  to  his  application  to  become  such  citizen ; 
and  the  court  admitting  such  alien  shall,  in  addition  to 
such  proof  of  residence  and  good  moral  character,  as  now 
provided  by  law,  be  satisfied  by  competent  proof  of  such 
person's  having  been  honorably  discharged  from  the  service 
of  the  United  States.1 

1370.  Any  alien  of  the  age  of  twenty-one  years  and  up-  _f lie?.8  honor- 

p    ably    discharged 

ward  who  has  enlisted  or  inav  enlist  in  the  United  States  fr°m  the  naval 

service. 

Navy  or  Marine  Corps,  and  has  served  or  may  hereafter  July  26,  1394, 
serve  five  consecutive  years  in  the  United  States  Navy  or  v' 
one  enlistment  in  the  United  States  Marine  Corps,  and  has 
been  or  may  hereafter  be  honorably  discharged,  shall  be 
admitted  to  become  a  citizen  of  the  United  States  upon  his 
petition,  without  any  previous  declaration  of  his  intention 
to  become  such;  and  the  court  admitting  such  alien  shall, 
in  addition  to  proof  of  good  moral  character,  be  satisfied 
by  competent  proof  of  such  person's  service  in  and  honor- 
able discharge  "from  the  United  States  Navy  or  Marine 
Corps.  Act  of  July  26, 1894  (28  Stat.  L.,  124}. 

1371.  Any  alien,  being  under  the  age  of  twenty-one    Minor  resi- 
years,  who  has  resided  in  the  United  States  three  years '  6May  26, 1824,  c. 

,.          ,  .  .     .  L   ,,  ,  186,s.l,v.4,p.69. 

next  preceding  his  arriving  at  that  age,  and  who  has  con-  sec.2i67,B.s. 
tinned  to  reside  therein  to  the  time  he  may  make  applica- 
tion to  be  admitted  a  citizen  thereof,  may,  after  he  arrives 
at  the  age  of  twenty-one  years,  and  after  he  has  resided 
five  years  within  the  United  States,  including  the  three 
years  of  his  minority,  be  admitted  a  citizen  of  the  United 
States,  without  having  made  the  declaration  required  in 
the  first  condition  of  section  twenty-one  hundred  and  sixty- 
five;  but  such  alien  shall  make  the  declaration  required 
therein  at  the  time  of  his  admission;  and  shall  further 
declare,  on  oath,  and  prove  to  the  satisfaction  of  the  court, 

'Aliens,  honorably  discharged  after  enlisting  in  our  Army,  are  not,  by  such  dis- 
charge alone,  made  citizens,  but  they  are  thereupon  entitled  (under  a  provision  of 
the  act  of  July  17, 1862,  now  section  2166,  Revised  Statutes)  to  be  admitted  to  become 
citizens  without  previous  declaration  of  intention,  upon  merely  presenting  to  the 
proper  court  (see  section  2165,  Revised  Statutes)  a  petition  for  the  purpose,  accom- 
panied by  proof  of  at  least  one  year's  residence  within  the  United  States  previous  to 
the  application,  of  good  moral  character,  and  of  the  fact  of  honorable  discharge. 
(Dig.  J.  A.  Gen.,  p.  148,  par.  1.) 

Under  the  act  of  July  30,  1892,  an  enlisted  man,  to  be  eligible  for  promotion  as 
commissioned  officer,  must  be  a  citizen  of  the  United  States.  And,  in  order  to  be 
promptly  naturalized,  under  section  2166,  Revised  Statutes,  he  must  first  be  honor- 
ably discharged.  So,  advised  that  such  alien,  to  be  qualified  for  examination  and 
appointment  under  the  act,  should  be  discharged  and,  after  naturalization,  be 
reenlisted.  (Ibid.,  par.  3.) 

The  mere  enlistment  and  honorable  discharge  of  an  alien  as  a  soldier  of  our  Army 
do  not  per  se  constitute  him  a  citizen  of  the  United  States.  He  must  still  make 
formal  petition  to  one  of  the  courts,  etc.,  specified  in  section  2165,  Revised  Statutes, 
and  present  thereupon  the  evidence  reauired  by  section  2166.  (Ibid.,  238,  par.  1.) 

A  native-born  minor  is  a  citizen  of  the  United  States  under  the  fourteenth  amend- 
ment of  the  Constitution.  (Ibid.,  par.  2.) 


534  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

that,  for  two  years  next  preceding,  it  has  been  his  bona- 

fide  intention  to  become  a  citizen  of  the  United  States; 

and  he  shall  in  all  other  respects  comply  with  the  laws  in 

regard  to  naturalization. 

chSdren^fade-  1372<  When  aiiy  alien>  who  nas  complied  with  the  first 
clMa?26  1804  c  con(lition  specified  in  section  twenty-one  hundred  and  sixty- 
4V-2^l;,p;>2^-five.  dies  before  he  is  actually  naturalized,  the  widow  and 

NBC.  «l»ct,  it.  s.  ' 

the  children  of  such  alien  shall  be  considered  as  citizens 
of  the  United  States,  and  shall  be  entitled  to  all  rights 
and  privileges  as  such,  upon  taking  the  oaths  proscribed1 
by  law. 
Aliens  of  AM-     1373.  The  provisions  of  this  Title2  shall  apply  to  aliens 

can  nativity  and 

descent.  [being  free  white  persons,  and  to  aliens]  of  African  nativity 

254,  sf?,  vTMTpi  and  to  persons  of  African  descent. 

256 ;  Feb.  18, 1875,  c.  80,  v.  18,  p.  318.    Sec.  2169,  B.  S. 

i5reddence  re  1374.  No  alien  shall  be  admitted  to  become  a  citizen  who 
42M8ari23'v8123' c>  kas  n°t  f°r  ^ne  continued  term  of  five  years  next  preceding 
84-  fi  his  admission  resided  within  the  United  States. 

BMUZlVDylfoB* 

Alien  enemies     1375.  No  alien  who  is  a  native  citizen  or  subject,  or  a 

not  admitted. 

Apr.  u,  1802,  c.  denizen  of  any  country,  state,  or  sovereignty  with  which 
July  so',  im,  c.  the  United  States  are  at  war,  at  the  time  of  his  applica- 

sec.2ln,'R.s.  tion,  shall  be  then  admitted  to  become  a  citizen  of  the 
United  States;  but  persons  resident  within  the  United 
States,  or  the  Territories  thereof,  on  the  eighteenth  day  of 
June,  in  the  year  one  thousand  eight  hundred  and  twelve, 
who  had  before  that  day  made  a  declaration,  according  to 
law,  of  their  intention  to  become  citizens  of  the  United 
States,  or  who  were  on  that  day  entitled  to  become  citizens 
without  making  such  declaration,  may  be  admitted  to 
become  citizens  thereof,  notwithstanding  they  were  alien 
enemies  at  the  time  and  in  the  manner  prescribed  by  the 
laws  heretofore  passed  on  that  subject;  nor  shall  anything 
herein  contained  be  taken  or  construed  to  interfere  with 
or  prevent  the  apprehension  and  removal,  agreeably  to 
law,  of  any  alien  enemy  at  any  time  previous  to  the  actual 
naturalization  of  such  alien. 

citizenship  of     1376.  The  children  of  persons  who  have  been  dulv  natu- 

children    of  per- 
sons naturalized,  ralized  under  any  law  of  the  United  States,  or  who,  previ- 

28,s!>4,'v.2,p.i55.ous  to  the  passing  of  any  law  on  that  subject,  by  the  Gov- 
Gordon,  6  Cr^  eminent  of  the  United  States,  may  have  become  citizens 
fieia,  i3Biatch.,of  anyone  of  the  States,  under  the  laws  thereof,  being 
33sec.2i72,R.s.  under  the  age  of  twenty-one  years  at  the  time  of  the  natu- 
ralization of  their  parents,  shall,  if  dwelling  in  the  United 
States,  be  considered  as  citizens  thereof;  and  the  children 
of  persons  who  now  are,  or  have  been,  citizens  of  the 

1  Error  in  the  roll ;  should  be  prescribed. 

'Title  XXX,  Kevised  Statutes;  paragraphs  1367-1379  of  this  work. 


THE    MILITARY    LAWS    OF   THE    UNITED   STATES.  535 

United  States,  shall,  though  born  out  of  the  limits  and 
jurisdiction  of  the  United  States,  be  considered  as  citizens 
thereof;  but  no  person  heretofore  proscribed  by  any  State, 
or  who  has  been  legally  convicted  of  having  joined  the 
army  of  Great  Britain  during  the  Eevolutionary  War, 
shall  be  admitted  to  become  a  citizen  without  the  consent 
of  the  legislature  of  the  State  in  which  such  person  was 
proscribed. 

1377.  The  police  court  of  the  District  of  Columbia  shall  Df8trcfct°oTcof 
have  no  power  to  naturalize  foreigners.  lumbia  has  no 

power  to  naturalize  aliens.     June  17,  1870,  c.  133,  s.  5,  v.  16,  p.  154.     Sec.  2173,  R.S. 

1378.  Every  seaman,  being  a  foreigner,  who  declares  his 
intention  of  becoming  a  citizen  of  the  United  States 

any  competent  court,  and  shall  have  served  three  years  on  26s-ec  2m  R  & 

board  of  a  merchant-  vessel  of  the  United   States  subse- 

quent to  the  date  of  such  declaration,  may,  on  his  applica 

tion  to  any  competent  court,  and  the  production  of  his 

certificate  of  discharge  and  good  conduct  during  that  time, 

together  with  the  certificate  of  his  declaration  of  intention 

to  become  a  citizen,  be  admitted  a  citizen  of  the  United 

States;  and  every  seaman,  being  a  foreigner,  shall,  after 

his  declaration  of  intention  to  become  a  citizen  of  the 

United  States,  and  after  he  shall  have  served  such  three 

years,  be  deemed  a  citizen  of  the  United  States  for  the 

purpose  of  manning  and  serving  on  board  any  merchant- 

vessel  of  the  United  States,  anything  to  the  contrary  in 

any  act  of  Congress  notwithstanding;  but  such  seaman 

shall,  for  all  purposes  of  protection  as  an  American  citizen, 

be  deemed  such,  after  the  filing  of  his  declaration  of  inten- 

tion to  become  such  citizen.1 

1379.  That  upon  the  completion  of  said  allotments  and  "'    ]JJ 


the  patenting  of  the  lands  to  said  allottees,  each  and  every  aiiottees 

dians  adopting 

member  of  the  respective  bands  or  tribes  of  Indians  to  civilized  nfe. 

whom  allotments  have  been  made  shall  have  the  benefit  of  18*7,  v.  24,  P.m 

and  be  subject  to  the  laws,  both  civil  and  criminal,  of  the 

State  or  Territory  in  which  they  may  reside;  and  no  Ter- 

ritory shall  pass   or  enforce  any  law  denying  any  such 

Indian  within  its  jurisdiction  the  equal  protection  of  the 

law.    And  every  Indian  born  within  the  territorial  limits 

of  the  United  States  to  whom  allotments  shall  have  been 

made  under  the  provisions  of  this  act,  or  under  any  law  or 

treaty,  and  every  Indian  born  within  the  territorial  limits 

of  the  United  States  who  has  voluntarily  taken  up,  within 

said  limits,  his  residence  separate  and  apart  from  any  tribe 

of  Indians  therein,  and  has  adopted  the  habits  of  civilized 

1  For  statutory  provisions  respecting  seamen  in  the  naval  service  of  the  United 
States,  see  paragraph  1370,  ante. 


536  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

life,  is  hereby  declared  to  be  a  citizen  of  the  United  States, 
and  is  entitled  to  all  the  rights,  privileges,  and  immunities 
of  such  citizens,  whether  said  Indian  has  been  or  not,  by 
birth  or  otherwise,  a  member  of  any  tribe  of  Indians  within 
the  territorial  limits  of  the  United  States  without  in  any 
manner  impairing  or  otherwise  affecting  the  right  of  any 
such  Indian  to  tribal  or  other  property.1  Sec.  6,  act  of 
February  8,  1887  (24  Stat.  L.,  390.} 


1  For  the  Indian  allotment  act,  see  the  act  of  February  8,  1887  (24  Stat.  L.,  358-390). 


CHAPTER   XXXVII. 


THE    INDIANS— INDIAN    AGENTS— THE    INDIAN 
COUNTRY. 


Par. 

1380.  Indian    inspectors;    term  of 

office. 

1381.  Powers    and    duties    of 

inspectors. 

1382.  Indian  agents. 

1383.  Services  of  certain  agents, 

etc.,  to  be  dispensed  with. 

1384.  The  same. 

1385.  Salary  of  Indian  agents. 

1386.  Term  of  office. 

1387.  Bonds. 

1388.  Duties. 

1389.  Indian  agents  to  make  an- 

nual reports  of  schools,etc . 

1390.  Discontinuance  and  transfer 

of  agencies. 

1391.  Residence  of  Indian  agents. 

1392.  Officers  of  the  Army  may  be 

required  to  act  as  Indian 
agents. 

1393.  Officers  of  the  Army  to  be 

detailed  as  agents. 

1394.  Compensation  for  extra 

services. 

1395.  Acknowledgment  of  deeds, 

etc.,  by  agents. 

1396.  Appointment  of  sub-Indian 

agents. 

1397.  Limits  of  superintendences, 

agencies,  etc. 

1398.  Special  agents  and  commis- 

sioners. 

1399.  Interpreters. 

1400.  Preference  to  Indians  as  in- 

terpreters. 

1401.  Instruction  of  Indians. 

1402.  When  tribes  may  direct  the 

appointment  of   black- 
smiths, etc. 

1403.  Industrial  training   schools 

for  Indian  youth. 


Par. 

1404.  Reports  of  schools. 

1405.  Discontinuance  of  the  offices 

of     subagents,    interpre- 
ters, etc. 

1406.  No  person  to  hold  two  offices ; 

leave  of  absence. 

1407.  Additional  security  from  dis- 

bursing officers,  etc. 

1408.  Compensation  prescribed  to 

be  in  full. 

1409.  Allowance  for  traveling  ex- 

penses. 

1410.  Employees  not  to  trade  with 

Indians. 

1411.  No  future  treaties  with  In- 

dians. 

1412.  Abrogation  of  treaties. 

1413.  Payment  of  certain   annui- 

ties in  coin. 

1414.  Payment  of  annuities  in 

goods. 

1415.  Purchase  of  goods   for  In- 

dians. 

1416.  Manner  of  purchase. 

1417.  Claims  for  supplies. 

1418.  Modes  of  paying  annuities 

and  distributing  goods. 

1419.  Withholding  annuities  from 

intoxicated  persons. 

1420.  Army  officer  to  be  present 

at  delivery  of  annuities. 

1421.  Mode  of  disbursements. 

1422.  Labor  required  from  Indians 

on  reservations  to  amount 
of  supplies ;  exceptions. 

1423.  Rolls  of  Indians  entitled  to 

supplies. 

1424.  Mode  of  distributing. 

1425.  Annual  accounts  of  disburse- 

ments, etc. 

1426.  Sales  of  cattle ;  penalty. 


537 


538 


THE   MILITAR      LAWS    OF   THE    UNITED    STATES. 


Par. 

1427.  Restriction  on  advances  to 

superintendents,  etc. 

1428.  Misapplication  of  funds. 

1429.  Indian  depredation  claims; 

annuities. 

1430.  Funds  for  education. 

1431.  Annuities  to  hostile  Indians. 

1432.  Goods  withheld  from  chiefs 

who  have  violated  treaty 
stipulations. 

1433.  Moneys  due  Indians  holding 

American  captives. 

1434.  Contracts  with  Indians. 

1435.  Payments   under    contracts 

restricted. 

1436.  The  same;  penalty. 

1437.  Assignments  of  contracts  re- 

stricted. 

1438.  The  same. 

1439.  Moneys  due  incompetent  or 

orphan  Indians. 

1440.  Number  of  Indians  present 

at  issues  to  be  reported. 

1441.  Army  rations  for  Indians. 

1442.  Sending  seditious  messages ; 

penalty. 

1443.  Carrying  seditious  mes- 

sages; penalty. 

1444.  Correspondence  with  foreign 

nations  to  excite  Indians 
to  war ;  penalty. 

1445.  General  superintendence  by 

the  President  over  tribes 
removed  west  of  the  Mis- 
sissippi. 

1446.  Survey  of   Indian   reserva- 

tions. 

1447.  White  men  marrying  Indian 

women  not  to  acquire 
tribal  rights. 

1448.  Indian  women    marrying 

white  men  to  become  citi- 
zens. 

1449.  Evidence  of  marriage. 

1450.  Purchases    or    grants    from 

Indians. 

1451.  Driving  stock  to  feed  on  In- 

dian lands. 

1452.  Settling  on  or  surveying 

lands  belonging  to  Indians 
by  treaty. 

1453.  Protection  of  Indians  desir- 

ing civilized  life. 

1454.  Citizenship  to  be   accorded 

to  allottees  and  Indians 
adopting  civilized  life. 


Par. 
1455. 

1456. 


1458. 
1459. 
1460. 
1461. 
1462. 

1463. 
1464. 
1465. 
1466. 
1467. 

1468. 
1469. 


1470. 
1471. 

1472. 
1473. 
1474. 


1475. 


1476, 


1477. 

1478, 
1479, 
1480. 

1481, 


Indians  trespassing  upon 
lands  of  civilized  Indians. 

Suspension  of  chief  for  tres- 
pass. 

Sale  of  buildings  belonging 
to  the  United  States. 

Sale  of  land  with  buildings. 

Penalties,  how  recovered. 

Proceedings  against  goods. 

Burden  of  proof. 

Sale  of  cattle  by  Indian 
agents. 

Trading  with  Indians. 

License  to  trade. 

Refusal  of  license. 

Revocation  of  license. 

Prohibition  of  trade  by  the 
President. 

Penalty  for  trading  without 
a  license. 

Penalty  for  foreigners  enter- 
ing Indian  country  with- 
out passports. 

Prohibited  purchases  and 
sales. 

Trading  in  arms,  etc.,  in  dis- 
trict occupied  by  uncivi- 
lized or  hostile  Indians; 
penalty. 

Prohibition  of  hunting  on 
Indian  lauds. 

Penalty  for  removing  cattle 
from  Indian  country. 

Introduction  of  intoxicating 
liquors  into  Indian  coun- 
try prohibited;  penalty; 
exception  in  favor  of  War 
Department. 

Officers  and  soldiers,  etc., 
not  to  barter,  donate,  or 
furnish  liquor,  wine, 
beer,  etc.,  to  Indians  upon 
reservation. 

Power  of  superintendents, 
agents,  and  post  com- 
manders, etc.,  to  search 
for  concealed  liquors. 

Penalty  for  setting  up  dis- 
tillery in  Indian  country. 

Assault;  penalty. 

Arson. 

Forgery  and  depredations  on 
mails. 

General  laws  respecting 
crimes  extended  to  Indian 
country. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


539 


Par. 

1482.  Exceptions  to  operation  of 

preceding  sections. 

1483.  Removal  of  persons. 

1484.  Penalty  for  return. 

1485.  Removal  from  reservations. 

1486.  Penalty  for  timber  depreda- 

tions. 

1487.  Army  officers,  etc.,  prohib- 

ited from  giving  permis- 
sion to  Indians  to  go  into 
the  State  of  Texas. 

1488.  Employment   of   military 

force  in  apprehending  per- 
sons violating  the  law. 

1489.  Detention  of  persons  appre- 

hended by  military. 

1490.  Arrest  of  absconding  Indians 

guilty  of  crime. 


Par. 

1491.  Executing  process. 

1492.  Reparation  for  inj  ured  prop- 

erty. 

1493.  Payment  where  offender  is 

unable  to  make  same. 

1494.  Injuries  to  property  by  In- 

dians. 

1495.  Superintendents,  etc., 

authorized  to  take  deposi- 
tions. 

1496.  Indians  committing  certain 

crimes  to  be  subject  to  the 
laws. 

1497.  Assaults  upon  officials ;  pen- 

alty. 

1498.  Marshals  to  execute  process 

in  Indian  Territory. 
1499. 1500.  The  Indian  police. 


INDIAN  INSPECTORS   AND   INDIAN   AGENTS. 


1380.  There  shall  be  appointed  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  a  sufficient 
number  of  Indian  inspectors,  not  exceeding  five1  in  num- 
ber,  to  perform  the  duties  required  of  such  inspectors  by 
the  provisions  of  this  Title.    Each  inspector  shall  hold 
his  office  for  four  years,  unless  sooner  removed  by  the 
President. 

1381.  Each  Indian  superin  tendency  and  agency  shall  be 
visited  and  examined  as  often  as  twice  a  year2  by  one  ororJ-Md 
more  of  the  inspectors.     Such  examination  shall  extend  to  13^a8rs' 
a  full  investigation  of  all  matters  pertaining  to  the  business  l%Pp 
of  the  supermtendency  or  agency,  including  an  examina- 
tion of  accounts,  the  manner  of  expending  money,  the 
number  of  Indians  provided  for,  contracts  of  all  kinds 
connected  with  the  business,  the  condition  of  the  Indians, 
their  advancement  in  civilization,  the  extent  of  the  reserva- 
tions, and  what  use  is  made  of  the  lands  set  apart  for  that 
purpose,  and,  generally,  all  matters  pertaining  to  the  Indian 
service.    For  the  purpose  of  making  such  investigations, 
each  inspector  shall  have  power  to  examine  all  books, 
papers,  and  vouchers,  to  administer  oaths,  and  to  examine 

on  oath  all  officers  and  persons  employed  in  the  superin- 
tendency  or  agency,  and  all  such  other  persons  as  he  may 
deem  necessary  or  proper.  The  inspectors,  or  any  of  them, 
shall  have  power  to  suspend  any  superintendent  or  agent 

JBy  the  act  of  March  3,  1875  (18  Stat.  L.,  ch.  132,  sec.  1.  p.  420),  the  number  of  com- 
missioners was  reduced  to  three.  For  powers  and  duties  of  the  Secretary  of  the 
Interior  respecting  Indian  affairs,  see  paragraphs  372-374,  ante. 

2The  act  of  March  3,  1875  (18  Stat.  L.,  p.  422),  repeals  this  requirement. 


Sec.  2043,  B.S 


^87|'  ®- 
' 


540  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

or  employe^  and  to  designate  some  person  in  bis  place 
temporarily,  subject  to  the  approval  of  the  President, 
making  immediate  report  of  such  suspension  and  designa- 
tion; and  upon  the  conclusion  of  each  examination  a 
report  shall  be  forwarded  to  the  President  without  delay. 
The  inspectors,  in  the  discharge  of  their  duties,  jointly 
and  individually,  shall  have  power,  by  proper  legal  pro- 
ceedings, which  it  shall  be  the  duty  of  the  district 
attorney  of  the  United  States  for  the  appropriate  district 
duly  to  effectuate,  to  enforce  the  laws,  and  to  prevent  the 
violation  of  law  in  the  administration  of  affairs  in  the 
several  agencies  and  superintendencies.  So  far  as  practi- 
cable, the  examinations  of  the  agencies  and  superintend- 
encies shall  be  made  alternately  by  different  inspectors,  so 
that  the  same  agency  or  super  in  tendency  may  not  be 
examined  twice  in  succession  by  the  same  inspector  or 
inspectors. 
S^ian  agent*..  1382.  The  President  is  authorized  to  appoint  from  time 

Jt?6D.  14,  Jo/o,  C. 

138,  s.  i.  v.  IT.  p.  to  time,  by  and  with  the  advice  and  consent  of  the  Senate, 

437;  June  22, 1874, 

c. 389, v. is, p.  147. the  following  Indian  agents: 

Sec.  2052,  B.S.       _,  _      *L 

Three  for  the  tribes  in  Oregon. 

Fourteen  for  the  tribes  east  of  the  Eocky  Mountains,  and 
north  of  New  Mexico  and  Texas. 
Seven  for  the  tribes  in  New  Mexico- 
Three  for  the  tribes  in  the  Territory  of  Washington. 
One  for  the  tribes  in  Kansas. 
One  for  the  Kickapoos. 
One  for  the  Delawares. 
Two  for  the  tribes  in  Utah- 
One  for  the  Poncas. 

One  for  the  Pawnees  in  Nebraska,  each  with  an  annual 
salary  of  fifteen  hundred  dollars. 

Four  for  the  tribes  in  California,  at  an  annual  salary  of 
eighteen  hundred  dollars  each. 
Three  for  the  tribes  in  Texas. 

One  for  the  Wichitas  and  neighboring  tribes  west  of  the 
Choctaws  and  Chickasaws,  at  an  annual  salary  of  one 
thousand  dollars. 

ta^7geZfeCtcr;  1383-  Jt  shall  be  the  duty  of  the  President  to  dispense 
tot  be  dispensed  Witll  tue  services  of  such  Indian  agents  and  superintend- 
&  22?3i874, ents  as  mav  be  practicable;  and  where  it  is  practicable 
ju3ne  V22,8i87414c:  ^Q  slia11  squire  the  same  person  to  perform  the  duties  of 
289,  v.i s,' p.  177.  two  agencies  or  superintendencies  for  one  salary. 

ThCeS.E'8'     1384-  Whenever  any  one  or  more  of  the  super inten den- 
c-SeXe^.w™! cies  is  abolished  by  law,  or  discontinued  by  the  President, 
36s«c.  2054, U.S.  ^ae  Indian  agents  in  such  superintendencies  shall  report 
directly  to  the  Commissioner  of  Indian  Affairs. 


ps; 
Apr.  s,  ISM,  <,«,..  4,  v.  13,  p.  40.    Sec.  2050,  B.S. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  541 

1385.  Each  Indian  agent  shall  be  entitled  to  receive  a 
salary  at  the  rate  of  fifteen  hundred  dollars  a  year  [except  13         Tj 

as  herein  other  wise  provided  for].    *™  •  Feb-  27'  1877-  c-  69'  v-  19'  P-  244-     *&  2055,  R.I; 

1386.  Each  Indian  agent  shall  hold  his  office  for  the  term    Term  of  office. 
of  four  years  [and  until  his  successor  is  duly  appointed 

and  qualified.]1 

1387.  Each  Indian  agent,  before  entering  upon  the  duties    p        1851  c 
of  his  office,  shall  give  bond  in  such  penalties  and  with^-6'*-^^ 
such  security  as  the  President  or  the  Secretary  of  the  Inte-  J^.s.id,  v.islp." 
rior  may  require.  Sec.  2057,  R.S. 

1388.  Each  Indian  agent  shall,  within  his  agency,  man-    j,"*^  1834 
age  and  superintend  the  intercourse  with  the  Indians,  ^J62^^'^' 
agreeably  to  law  :  and  execute  and  perform  such  regula-  5.  ie,  s.  4  y!  9  ,p! 

736  ,  r  eb.  2<,  1851, 

tions  and  duties,  not  inconsistent  with  law,  as  may  be  c.  u,  s.  5.  v.  9,  p. 

587  •  Mar  3  1875 

prescribed  by  the  President,  the  Secretary  of  the  Interior,  0.132,  as.  '4,  '5, 
the  Commissioner  of  Indian  Affairs,  or  the  superintendent 
of  Indian  Affairs.2 

1389.  That  hereafter  each  Indian  agent  be  required,  in 

his  annual  report,  to  submit  a  census  of  the  Indians  at  his  ^port  of  schools, 
agency  or  upon  the  reservation  under  his  charge,  the  num-    July  4,  1884,  8. 
ber  of  males  above  eighteen  years  of  age,  the  number  of  '" 
females  above  fourteen  years  of  age,  the  number  of  school 
children  between  the  ages  of  six  and  sixteen  years,  the 
number  of  school-houses  at  his  agency,  the  number  of 
schools  in  operation  and  the  attendance  at  each,  and  the 
names  of  teachers  employed  and  salaries  paid  such  teachers. 
Sec.  9,  act  of  July  4,  1884  (23  Stat.  L.,  98). 

1390.  The  President  shall,  whenever  he  may  judge  it 
expedient,  discontinue  any  Indian  agency,  or  transfer 


1834  o 

same,  from  the  place  or  tribe  designated  by  law,  to  such  i®,  s.  4,  v.  4,  Y. 
other  place  or  tribe  as  the  public  service  may  require.3        '  s'ec.2069,R.s. 

1391.  Every  Indian  agent  shall  reside    and    keep  hisln^d^tsof 
agency  within  or  near  the  territory  of  the  tribe  for  which    ^2060  B  s 
he  may  be  agent,  and  at  such  place  as  the  President  may 
designate,  and  shall  not  depart   from  the  limits   of  his 

agency  without  permission. 

1392.  The  President  may  require  any  military  officer  of 


the  United  States  to  execute  the  duties  of  an  Indian  agent  ;  auv;e<i  to'  act  as 

'  Indian  agents, 

and  when  such  duties  are  required  of  any  military  officer,    June3o,i834,c. 
he  shall  perform  the  same  without  any  other  compensation  pp:S&-737Y 
than  his  actual  traveling  expenses.  Sec.  2002,  .  . 

Amended  by  the  insertion  of  the  words  in  brackets  by  the  act  of  May  17,  1882 
(22  Stat.  L.,  87). 

2In  this  connection  see  acts  of  June  22,  1874  (18  Stat.  L.,  173),  March  3,1875  (18 
Stat.  L.,  420),  July  4,  1884  (23  Stat.  L.,  98),  and  the  annual  appropriation  bills.  See  also 
Minis  v.  TJ.  S.,  15  Pet.,  423. 

Eor  Indian  police  see  act  of  May  27,  1878  (20  Stat.  L.,  86).  For  provisions  relating 
to  the  protection  of  officials  of  the  United  States  in  the  Indian  Territory,  see  the  act 
of  Jime9,  1888  (25  Stat.  L.,  178).  The  act  of  March  2,  1887  (24  Stat.  L.,  463),  provides 
that  the  Indian  police  arc  to  be  employed  in  maintaining  order  and  prohibiting  ille- 
gal traffic  in  liquor  on  the  several  Indian  reservations  and  within  the  Territory  of 
Alaska,  in  the  discretion  of  the  Secretary  of  the  Interior!  See,  in  this  ccunection, 
paragraphs  1499  and  1500,po,vt. 

3Seo  act  of  March  1,  Ift83  (22  Stat,  L.,  451), 


542  THE    MILITARY   LAWS    OF   THE    UNITED    STATES, 

officers  of  the     1393.  That  from  and  after  the  passage  of  this  act  the 

Array  to  be  de- 
tailed as  agents;  President  shall  detail  officers  of  the  Uiiited  States  Army 

exception. 

jui.vw,  1892, v.  to  act  as  Indian  agents  at  all  agencies  where  vacancies 
from  any  cause  may  hereafter  occur,  who,  while  acting  as 
such  agents,  shall  be  under  the  orders  and  direction  of  the 
Secretary  of  the  Interior,  except  at  agencies  where,  in  the 
opinion  of  the  President,  the  public  service  would  be  better 
promoted  by  the  appointment  of  a  civilian.1  Act  of  July 
13, 1892  (27  Stat.  L.,  120}. 

for0£tea8ser\*     1394.  Ko  compensation  beyond  their  actual  expenses  for 

iCMay  31  1832  c.  ex^ra  services  shall  be  allowed  any  Indian  agent  or  sub- 

109,  s.  2,  v.  4,  p.  agent  for  services  when  doing  duty  under  the  order  of  the 

sec. sees, B.S.  Government,  detached  from  their  agency  and  the  boundary 

of  the  tribe  to  which  they  are  agents  or  sub-agents. 
mOTtk  ofwdt2fi;     1395-  Indian  agents  are  authorized  to  take  acknowledg- 
etMary3a|i8558c  ments  of  deeds,  and  other  instruments  of  writing,  and  to 
204,  s.  10,  v.  10,  P.  administer  oaths  in  investigations  committed  to  them  in 
sec. 2064, B.s.  Indian  country,  pursuant  to  such  rules  and  regulations  as 
maybe  prescribed  for  that  purpose,  by  the  Secretary  of  the 
Interior;  and  acknowledgments  so  taken  shall  have  the 
same  effect  as  if  taken  before  a  justice  of  the  peace. 
Appointment     1396.  A  competent  number  of  sub-Indian  agents  shall  be 

of  sub-Indian 

agjSne3o  1834  c  aPPolnteo-  ^y  the  President,  with  a  salary  of  one  thousand 

162,  s.  5,V.  4, 'p.'  dollars  a  year  each,  to  be  employed,  and  to  reside  wherever 

Sec. 2065,  R.S.  the  President  may  direct,  and  who  shall  give  bonds,  with 

one  or  more  sureties,  in  the  penal  sum  of  one  thousand 

dollars,  for  the  faithful  execution  of  their  duties.     But  no 

sub-agent  shall  be  appointed  who  shall  reside  within  the 

limits  of  any  agency  where  there  is  an  agent  appointed. 

1397<  The  limits  of  each  superintendency,  agency,  and 
sub-agency  shall  be  established  by  the  Secretary  of  the 
June3o,i834,c.  Interior,  either  by  tribes  or  geographical  boundaries. 

162,  s.  7,  v.  4,  p.  736 ;  Mar.  3  1847,  c.  66,  s.  1,  v.  9,  p.  203.     Sec.  2066,  B.  S. 

andPcommSnS     1398   A11  special    agents    and  commissioners  not  ap- 
erMar.  3, 1863,  c.  Pointed  b7  tue  President  shall  be  appointed  by  the  Secre- 

of  the  lnteri<>r. 

I399-  An  interpreter  shall  be  allowed  to  each  agency. 
162,  s.  9,  V.  4,  'p.  Where  there  are  different  tribes  in  the  same  agency,  speak- 
2068,  B.S.  ing  different  languages,  one  interpreter  maybe  allowed,  at 
the  discretion  of  the  Secretary  of  the  Interior,  for  each  of 
such  tribes.     Interpreters  shall  be  nominated,  by  the  proper 
agents,  to  the  Department  of  the  Interior  for  approval, 
and  may  be  suspended  by  the  agent  from  pay  and  duty, 

1  The  act  of  August  15,  1894  (28  Stat.  L.,  288),  contains  a  proviso  to  the  effect  that 
certain  appropriations  "shall  not  take  effect  or  become  available  in  any  case  for  or 
during  the  time  in  which  any  officer  of  the  Army  of  the  United  States  shall  be  en- 
gaged in  the  performance  of  the  duties  of  Indian  agent  at  any  of  the  agencies  above 
named."  This  provision  was  repeated  in  the  acts  of  March  2,  1895  (28  Stat.  L.,  878), 
and  June  10,  1896  (29  Stat,  L.,  323). 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      543 

and  the  circumstances  reported  to  the  Department  of  the 
Interior  for  final  action. 

1400.  In  all  cases  of  the  appointments  of  interpreters  or  In*|2j^!g;J  ^ 
other  persons  employed  for  the  benefit  of  the  Indians,  a  te5P^|Ji8-1834  c 
preference  shall  be  given  to  persons  of  Indian  descent,  if  162,  s.  9,V.  4, 'p. 
such  can  be  found,  who  are  properly  qualified  for  the  exe-    sec.  2069,  B.S. 
cution  of  the  duties. 

INDIAN   SCHOOLS. 

1401.  The  President  may,  in  every  case  where  he  shall  InTdni^rsuotio11  of 
judge  improvement  in  the  habits  and  condition  of  such  85^.a]j-  ^  ™£9' c- 
Indians  practicable,  and  that  the  means  of  instruction  can   sec.  2071, R.S. 
be  introduced  with  their  own  consent,  employ  capable  per- 
sons of  good  moral  character  to  instruct  them  in  the  mode 

of  agriculture  suited  to  their  situation ;  and  for  teaching 
their  children  in  reading,  writing,  and  arithmetic,  and  per- 
forming such  other  duties  as  may  be  enjoined  according  to 
such  instructions  and  rules  as  the  President  may  give  and 
prescribe  for  the  regulation  of  their  conduct,  in  the  dis- 
charge of  their  duties.  A  report  of  the  proceedings  adopted 
in  the  execution  of  this  provision  shall  be  annually  laid 
before  Congress.1 

1402.  Where  any  of  the  tribes  are,  in  the  opinion  of  them^h^retcf  bt^| 
Secretary  of  the  Interior,  competent  to  direct  the  employ-  SkEths  etc 
ineiit  of  their  blacksmiths,  mechanics,  teachers,  farmers,  162Use9°'v844'p* 
or  other  persons  engaged  for  them,  the  direction  of  such  73^c  2072  R'  g 
persons  may  be  given  to  the  proper  authority  of  the  tribe. 

1403.  That  the  Secretary  of  War  be,  and  he  is  hereby,    industrial 

'  training   schools 

authorized  to  set  aside,  for  use  in  the  establishment  of  nor-  for  Indian  youth. 
mal  and  industrial  training-schools  for  Indian  youth  froni22,P.i8i.' 
the  nomadic  tribes  having  educational  treaty  claims  upon 
the  United  States,  any  vacant  posts  or  barracks,  so  long 

*  Held  (April,  1879)  to  be  at  least  doubtful  whether  the  authority  of  the  President 
as  Commander  in  Chief  could  legally  be  extended  to  the  ordering  of  an  officer  of  the 
Army  upon  the  purely  civil  duty  ot  instructing  Indian  youth,  unless,  indeed,  such 
instruction  was  to  be  given  by  him  as  a  professor  of  a  college,  etc.,  under  section 
1225,  Revised  Statutes.  Special  duties  of  an  exclusively  civil  character,  where 
intended  to  be  anything  more  than  merely  temporary,  have  in  general  been  devolved 
upon  military  officers  only  by  the  authority  of  express  legislation — as,  for  example, 
in  the  cases  provided  for  by  sections  1225,  2062,  2190,  and  4687,  Revised  Statutes,  in 
which  authority  has  been  given  by  Congress  for  the  employment  of  officers  of  the 
Army  as  professors,  etc.,  of  colleges,  Indian  agents,  and  assistants  in  taking  the 
census  (a)  and  on  the  coast  survey.  So,  advised,  that,  if  thought  expedient  to  de- 
volve upon  military  officers  the  function  of  the  instruction  of  Indian  youth,  specific 
authority  be  obtained  from  Congress  for  the  purpose. (b)  (Dig.  J  A.  Gen.,  164,  par.  8.) 

The  industrial  training  school  for  the  Chilocco  Indians  not  being  established  "at  a 
vacant  military  post  or  barracks  set  aside  for  its  use  by  the  Secretary  of  War,"  held 
that  the  Secretary  would  not  be  authorized  to  detail  an  officer  of  the  Army  for  duty 
there  "in  connection  with  Indian  education,"  under  the  act  of  July  3,  1882,  chap- 
ter 363.  (Ibid.,  15,  par.  11.) 

a  See  G.  O.  39,  Headquarters  of  Army,  1880. 

ft  Congress  was  accordingly  resorted  to  for  authority  in  this  instance,  and,  by  the 
act  of  June  23,  1879,  chapter  35,  section  7,  the  Secretary  of  War  was  specially  em- 

Sowered  "to  detail  an  officer  of  the  Army  not  aboA^e  the  rank  of  captain  for  special 
uty  with  reference  to  Indian  education."    A  detail  was  made   accordingly,  by 
S.  0. 194,  Headquarters  of  Army,  of  August  23  following. 


544  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

as  they  may  not  be  required  for  military  occupation,  and 
to  detail  one  or  more  officers  of  the  Army  for  duty  in  con- 
nection with  Indian  education,  under  the  direction  of  the 
Secretary  of  the  Interior,  at  each  such  school  so  estab- 
lished :  Provided,  That  moneys  appropriated  or  to  be  appro- 
priated for  general  purposes  of  education  among  the  Indians 
may  be  expended,  under  the  direction  of  the  Secretary  of 
the  Interior,  for  the  education  of  Indian  youth  at  such 
posts,  institutions,  and  schools  as  he  may  consider  advan- 
tageous, or  as  .Congress  from  time  to  time  may  authorize 
and  provide.  Act  of  July  31,  1882  (22  Stat.  L.,  181}. 

Reports  of     1404.  That  the  Secretary  of  the  Interior  shall  report 

8CM°ar.82,  IBS?,  v.  annually,  on  or  before  the  first  Monday  of  December  of 

24,  p.  465.  each  year,  in  what  manner  and  for  what  purposes  the  gen- 

eral education  fund  for  the  preceding  fiscal  year  has  been 

expended;  and  said  report  shall  embrace  the  number  and 

kind  of  school-houses  erected,  and  their  cost,  as  well  as  cost 

of  repairs,  names  of  every  teacher  employed,  and  compen- 

sation allowed,  the  location  of  each  school,  and  the  average 

consent  of  par-  attendance  at  each  school:  Always  provided,  That  no  part 
of  the  money  appropriated  by  this  act  shall  be  expended  in 
the  transportation  from  or  support  of  Indian  pupils  or 
children  off  their  reservations,  respectively,  if  removed 
without  the  free  consent  of  their  parents  or  those  standing 
in  that  relation  to  them  by  their  tribal  laws  respectively. 
Act  of  March  2,  1887  (24  Stat.  L.,  465). 

Discontinu-     1405.  The  Secretary  of  the   Interior  shall,  under  the 

ance  of  the  offices 

of  Rubageiits,  in  direction  of  the  President,  cause  to  be  discontinued  the 

terpreters,  etc. 

July  9,  1832,  c.  services  of  such    agents,  I    sub-agents,  interpreters,  and 

174,  s.  5,  v.  4,  p.  ,          .  „  '  ,  .  , 

564;  Feb.  27,  1877,  mechanics,  as  may  from  time  to  time  become  unnecessary, 
c  sec!  207  s*  R.  si  in  consequence  of  the  \immigration\   [emigration!  of  the 

Indians,  or  other  causes. 
NO  person  to     1406.  No  person  shall  hold  more  than  one  office  at  the 

hold  two  officee  • 

leave  of  absence,  same  time  under  this  Title,  nor  shall  any  agent,  sub  agent, 

June  30,  1834.  c,  J 

162,  s.  10,  v.  4,  p.  interpreter,  or  person  employed  under  this  Title,  receive 

:sec.2074,R.s.  his  salary  while  absent  from  his  agency  or  employment,  with- 

out leave  of  the  superintendent,  or  Secretary  of  the  Interior; 

but  such  absence  shall  at  no  time  exceed  sixty  days. 

Additional  se      1407.  The   President  may,   from  time  to  time,  require 

curity  from  dis        ,  •,... 

buroing  officers,  additional  security,  and  in  larger  amounts,  irom  all  per- 

juneso,  1834.  c.  sons  charged  or  trusted,  under  the  laws  of  the  United 

p  States,  with  the  disbursement  or  application  of  money, 

5'      .  goods,  or  effects  of  any  kind,  on  account  of  Indian  affairs. 


b!     1408i  Tne  several  compensations  prescribed  by  this  Title 
in  full.  shall  be  in  full  of  all  emoluments  or  allowances  whatsoever. 

JuneSO,  1834,  c.  T)     .        ,  ,  .          .. 

162.8.  10,  v.  4,  p.  Hut  where  necessary,  a  reasonable  allowance  or  provision 
73*ec.207G,B.s,  may  be  made  for  offices  and  office  contingencies. 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  545 


1409.  Where  persons  are  required,  in  the  performance  of 

their  duties,  under  this  Title,  to  travel  from  one  place  to  pej^JJ30  1834  c 
another,  their  actual  expenses,  or  a  reasonable  sum  in  lieu  i«2,  s.  io,'v.  4,'p. 
thereof,  maybe  allowed  them,  except  that  no  allowance  Minis  ^gu-  s., 
shall  be  made  to  any  person  for  travel  or  expenses  in  com-  Sec.20i7JR.s. 
ing  to  the  seat  of  Government  to  settle  his  accounts,  unless 
thereto  required  by  the  Secretary  of  the  Interior. 

1410.  No  person  employed  in  Indian  affairs  shall  have 

any  interest  or  concern  in  any  trade  with  the  Indians,  0  1834  c 

except  for,  and  on  account  of,  the  United  States;  and  any  162,  s.  i4,V  4,'P! 
person  offending  herein,  shall  be  liable  to  a  penalty  of  five  s'ec.2078,R.s. 
thousand  dollars,  and  shall  be  removed  from  his  office.1 

PERFORMANCE   OF  ENGAGEMENTS  BETWEEN  THE  UNITED 
STATES   AND   INDIANS. 

1411.  No  Indian  nation  or  tribe  within  the  territory  of  tie^°J|1tthu^ntdrfaan 
the  United  States  shall  be  acknowledged  or  recognized  astri^8r-  3  1871  o 
an  independent  nation,  tribe,  or  power  with  whom 

United  States  may  contract  by  treaty;  but  no  obligation 
any  treaty  lawfully  made  and  ratified  with  any  such  Indian  1°'.  ISTO,  0.122, 
nation  or  tribe  prior  to  March  third,  eighteen  hundred  and    Sec.  2679,  R.S. 
seventy  -one,  shall  be  hereby  invalidated  or  impaired. 

1412.  Whenever  the  tribal  organization  of  any  Indian  tr^™8gation  of 
tribe  is  in  actual  hostility  to  the  United  States,  the  Presi-    *afyk,un,  c. 
dent  is  authorized,  by  proclamation,  to  declare  all  treaties  52s! 

with  such  tribe  abrogated  by  such  tribe,  if  in  his  opinion 
the  same  can  be  done  consistently  with  good  faith  and  legal 
and  national  obligations. 

1413.  The  Secretary  of  the  Treasury  is  authorized  to  pay    Payment  of 

-     rf  certain  annuities 

m  coin  such  ot  the  annuities  as  by  the  terms  of  any  treaty  in  coin. 

of  the  United  States  with  any  Indian  tribe  are  required  to  127,  f.  V  v.  13,'  p! 

,  .  ,    .  .  561. 

be  paid  in  com.  sec.208i,R.s. 

1414.  The  President  may,  at  the  request  of  any  Indian    Payment  of  an- 

.  *  nuities  in  goods. 

tribe,  to  which  any  annuity  is  payable  in  money,  cause  the    Juneso,  1334,  c. 

,  .  -,     .  T  ,  ,  •  -i      -i     •        j  -i       162,  8.  12,  v.  4,  p. 

same  to  be  paid  in  goods,  purchased  as  provided  in  the  737. 

,.      •  Sec.  2082,  B.S. 

next  section. 

1415.  All  merchandise  'required  by  any  Indian  treaty  for    Purchase  of 

.,       T     ,.  ,  ,         c,  „  .MI      goods  for  the  In- 

the  Indians,  payable  after  making  of  such  treaty,  shall  bedians. 

,        ,,        ,.          ,.  «:;        -,  June  30,  1834,  c. 

purchased  tinder  the  direction  of  the  Secretary  of  the  Inte-  102,  s.  13,  v.  4,  p. 
rior,  upon  proposals  to  be  received,  to  be  based  on  notices  c  339,  vni8,P'!i  76  1 
previously  to  be  given  ;  and  all  merchandise  required  at  the  i32,r's  37,  v8?i58,  p.' 
making  of  any  Indian  treaty  shall  be  purchased  under  the  cSsgfv"  ib^S'. 
order  of  the  Commissioner  of  Indian  Affairs  by  such  person  Sec'  2083'  B's* 

'For  statutes  authorizing  allotments  of  land  in  soveralty  to  Indians  see  the  acts 
of  February  8,  1887  (24  Stat.  L.,  388)  ;  section  2,  act  of  March  2,  188.0  (25  Stat.  L..  998)  ; 
Feb.  28,  1891  (26  Stat.  L.,  795)  ;  May  30,  1894  (28  Stat.  L.,  84)  ;  and  March  2,  1895,  ibid,  894. 

1919  --  35 


546  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

as  lie  shall  appoint.  All  other  purchases  on  account  of  the 
Indians,  and  all  payments  to  them  of  money  or  goods,  shall 
be  made  by  such  person  as  the  President  shall  designate 
for  that  purpose. 

]sfo  goods  shall  be  purchased  by  the  Office  of  Indian 


iy  5,  1862,  c.  Affairs,  or  its  agents,  for  any  tribe,  except  upon  the  written 
529.  '  requisition  of  the  superintendent  in  charge  of  the  tribe,  and 

'  only  upon  public  bids  in  the  mode  prescribed  by  the  pre- 
ceding section. 

claims  for  sup-     1417.  No  claims  for  supplies  for  Indians,  purchased  with- 

p  jeniy  15,  WTO,  c.  oufc  authority  of  law,  shall  be  paid  out  of  any  appropria- 

tion for  expenses  of  the  Office  of  Indian  Affairs,  or  for 

Sec*  2085,  R.  S. 

Indians. 


s  1418>  Tne  payment  of  all  moneys  and  the  distribution  of 
aoodsistributing  a^  g°°ds  stipulated  to  be  furnished  to  any  Indians,  or  tribe 
i62U8neii°  v844'p'  of  Indians,  SDa11  be  made  in  one  °f  the  following  ways,  as 
737^8Mar.  3',  is*?',  the  President  or  the  Secretary  of  the  Interior  may  direct: 
203  ;'A8ug'.36,  IBS?,'  First.  To  the  chiefs  of  a  tribe,  for  the  tribe. 
56;  July  15,  1870,'  Second.  In  cases  where  the  imperious  interest  of  the  tribe 
i6,  p9636ot  Mar  3'.  or  the  individuals  intended  to  be  benefited,  or  any  treaty 
ll^m',  SAuJ  stipulation,  requires  the  intervention  of  an  agency,  then  to 
i9,P8i96C'  289)V'  such  person  as  the  tribe  shall  appoint  to  receive  such  mon- 
Sec.2086,  B.  s.  evg  Qr  gOO(js.  or  jf  several  persons  be  appointed,  then 

upon  the  joint  order  or  receipt  of  such  persons. 

Third.  To  the  heads  of  the  families  and  to  the  individ- 
uals entitled  to  participate  in  the  moneys  or  goods. 

Fourth.  By  consent  of  the  tribe,  such  moneys  or  goods 
may  be  applied  directly,  under  such  regulations,  not  in- 
consistent with  treaty  stipulations,  as  may  be  prescribed 
by  the  Secretary  of  the  Interior,  to  such  purposes  as  will 
best  promote  the  happiness  and  prosperity  of  the  members 
of  the  tribe,  and  will  encourage  able-bodied  Indians  in  the 
habits  of  industry  and  peace. 

ofSn?ttesdfrom     1*10.  No  annuities,  or  moneys,  or  goods,  shall  be  paid  or 

8on°sxicated  per  distributed  to  Indians  while  they  are  under  the  influence 

ee^T  vVp4^  °f  anv  description  of  intoxicating  liquor,  nor»while  there 

Sec.2oV7,ii.s.  are  good  and  sufficient  reasons  leading  the  officers  or 

agents,  whose  duty  it  may  be  to  make  such  payments  or 

distribution,  to  believe  that  there  is  any  species  of  intoxi- 

cating liquor  within  convenient  reach  of  the  Indians,  nor 

until  the  chiefs  arid  head-men  of  the  tribe  shall  have 

pledged  themselves  to  use  all  their  influence  and  to  make 

all  proper  exertions  to  prevent  the  introduction  and  sale 

of  such  liquor  in  their  country. 

beA7rL°enterat     142a  The  superintendent,  agent,  or  sub-agent,  together 
°f  an'  w^  sucl1  militaiT  officer  as  the  President  may  direct,  shall 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  547 

be  present,  and  certify  to  the  delivery  of  all  goods  and    jvm6  30,  i834,c. 
money  required  to  be  paid  or  delivered  to  the  Indians.         MimsV.'4i?.'7s!,' 

15  Pet.,  423.     Sec.2088,B.S. 

1421.  At  the  discretion  of  the  President  all  disbursements  di8' 


of  moneys,  whether  for  annuities,  or  otherwise,  to 

treaty  stipulations  with  individual  Indians  or  Indian  tribes,    secl20S9,  is.  $'. 

shall  be  made  in  person  by  the  superintendents  of  Indian 

affairs,  where  superintendences  exist,  to  all  Indians  or 

tribes  within  the  limits  of  their  respective  superinteudeu- 

cies,  in  the  presence  of  the  local  agents  and  interpreters, 

who  shall  witness  the  same,  under  such  regulations  as  the 

Secretary  of  the  Interior  may  direct. 

1422.  That  for  the  purpose  of  inducing  Indians  to  labor    Labor  required 

from  Indians  on 

and  become  self-supporting,  it  is  provided  that  hereafter,  reservations  to 

7  amount  of  sup- 

in  distributing  the  supplies  and  annuities  to  the  Indians  lies. 

for  whom  the  same  are  appropriated,  the  agent  distributing  ISTS,  v.  is,  p.  449.' 

the  same  shall  require  all  able-bodied  male  Indians  between 

the  ages  of  eighteen   and  forty-  five  to  perform   service 

upon  the  reservation,  for  the  benefit  of  themselves  or  of 

the  tribe,  at  a  reasonable  rate,  to  be  fixed  by  the  agent  in 

charge,  and  to  an  amount  equal  in  value  to  the  supplies 

to  be  delivered  ;  and  the  allowances  provided  for  such  In- 

dians shall  be  distributed  to  them  only  upon  condition  of 

the  performance  of  such  labor,  under  such  rules  and  regu- 

lations as  the  agent  may  prescribe:  Provided,  That  the 

Secretary  of  the  Interior  may,  by  written  order,  except    Exceptions 

from  labor  rule. 

any  particular  tribe,  or  portion  of  tribe,  from  the  operation 
of  this  provision  where  he  deems  it  proper  and  expedient. 
Sec.  3,  act  of  March  3,  1875  (18  Stat.  L.,  449). 

1423.  That  hereafter,  for  the  purpose  of  properlv  dis-    Rolls  of  Indi- 

ans    entitled    to 

tributing  the  supplies  appropriated  for  the  Indian  service, 

it  is  hereby  made  the  duty  of  each  agent  m  charge  of  In- 

dians and  having  supplies  to  distribute,  to  make  out,  at 

the  commencement  of  each  fiscal  year,  rolls  of  the  Indians 

entitled  to  supplies  at  the  agency,  with  the  names  of  the 

Indians  and  of  the  heads  of  families  or  lodges,  with  the 

number  in  each  family  or  lodge,  and  to  give  out  supplies  .Supplies,  how 

to  the  heads  of  families,  and  not  to  the  heads  of  tribes  or  gl 

bands,  and  not  to  give  out  supplies  for  a  greater  length  of 

time  than  one  week  in  advance.     Sec.  4,  ibid. 

1424.  Whenever  goods  and  merchandise  are  delivered  to 
the  chiefs  of  a  tribe,  for  the  tribe,  such  goods  and  mer- 
chandise  shall  be  turned  over  by  the  agent  or  superintend-  39jc  290  R    ' 
ent  of  such  tribe  to  the  chiefs  in  bulk,  and  in  the  original 
package,  as  nearly  as  practicable,  and  in  the  presence  of 

the  head-men  of  the  tribe,  if  practicable,  to  be  distributed 


548  THE   MILITARY   LAWS   OP    THE    UNITED    STATES. 

to  the  tribe  by  the  chiefs  in  such  manner  as  the  chiefs  may 

deem  best,  in  the  presence  of  the  agent  or  superintendent. 

Annual  ac-     1425.  All  persons  whatsoever,  charged  or  trusted  with 

counts     of    dis-  , .  .  „,. 

bursements,  etc.  the  disbursement  or  application  01  money,  goods,  or  enects 
c.  IG^S.  is, V.  4,  pi  of  any  kind  for  the  benefit  of  the  Indians,  shall  settle  their 
c?ife^!?1'v.'if!p>.  accounts,  annually,  at  the  Department  of  the  Interior  on 
4  sec.209i.,R.s.  the  first  day  of  October  5  and  copies  of  the  same  shall  be 
laid  before  Congress  at  the  commencement  of  the  ensuing 
session,  by  the  proper  accounting  officers;  together  with  a 
list  of  the  names  of  all  persons  to  whom  money,  goods,  or 
effects  have  been  delivered  within  the  preceding  year,  for 
the  benefit  of  the  Indians,  specifying  the  amount  and  ob- 
ject for  which  they  were  intended,  and  showing  who  are 
delinquents,  if  any,  in  forwarding  their  accounts  according 
to  the  provisions  of  this  section;  and,  also,  with  a  list  of 
the  names  of  all  persons  appointed  or  employed  under  this 
Title,  with  the  dates  of  their  appointment  or  employment, 
and  the  salary  and  pay  of  each.1 

Sales  of  cattle,-  1426.  That  where  Indians  are  in  possession  or  control  of 
July*.  1884,  v.  cattle  or  their  increase  which  have  been  purchased  by  the 
Government  such  cattle  shall  not  be  sold  to  any  person  not 
a  member  of  the  tribe  to  which  the  owners  of  the  cattle 
belong  or  to  any  citizen  of  the  United  States  whether  inter- 
married with  the  Indians  or  not  except  with  the  consent  in 
writing  of  the  agent  of  the  tribe  to  which  the  owner  or 
possessor  of  the  cattle  belongs.  And  all  sales  made  in 
violation  of  this  provision  shall  be  void  and  the  offending 
purchaser  on  conviction  thereof  shall  be  fined  not  less 
than  five  hundred  dollars  and  imprisoned  not  less  than  six 
months.  Act  of  July  4, 1SS4  (23  Stat.  L.,  94). 
Restriction  on  1427.  No  superintendent  of  Indian  affairs,  or  Indian 

advances  to  su-  *-  ' 

perinten  dents,  agent,  or  other  disbursing  officer  in  such  service,  shall  have 

j'une27, 1846,  c.  advanced  to  him,  on  Indian  or  public  account,  any  money 

sec.2092,pB.  s.  to  be  disbursed  in  future,  until  such  superintendent,  agent, 

or  officer  in  such  service  has  settled  his  accounts  of  the 

1  Section  8  of  the  act  of  July  4, 1884  (23  Stat.  L.,  97),  provides,  that  any  disbursing 
or  other  officer  of  the  United  States,  or  other  person,  who  shall  knowingly  present, 
or  cause  to  be  presented,  any  voucher,  account,  or  claim  to  any  officer  of  the  United 
States,  for  approval  or  payment,  or  for  the  purpose  of  securing  a  credit  in  any  ac- 
count with  the  United  States,  relating  to  any  matter  pertaining  to  the  Indian  serv- 
ice, which  shall  contain  any  material  misrepresentation  of  fact  in  regard  to  the 
amount  due  or  paid,  the  name  or  character  of  the  article  furnished  or  received,  or  of 
the  service  rendered,  or  to  the  date  of  purchase,  delivery,  or  performance  of  service, 
or  in  any  other  particular,  shall  not  be  entitled  to  payment  or  credit  for  any  part  of 
said  voucher,  account,  or  claim;  and  if  any  such  credit  shall  be  given  or  received, 
or  payment  made,  the  United  States  may  recharge  the  same  to  the  officer  or  person 
receiving  the  credit  or  payment,  and  recover  the  amount  from  either  or  from  both, 
in  the  same  manner  as  other  debts  due  the  United  States  are  collected:  Provided, 
That  where  an  account  contains  more  than  one  voucher  the  foregoing  shall  apply 
only  to  such  vouchers  as  contain  the  misrepresentation:  And  provided  further,  That 
the  officers  and  persons  by  and  between  whom  the  business  is  transacted  shall,  in 
all  civil  actions  in  settlement  of  accounts,  be  presumed  to  know  the  facts  in  rela- 
tion to  the  matter  set  forth  in  the  voucher,  account,  or  claim :  And  provided  further, 
That  the  foregoing  shall  be  in  addition  to  the  penalties  now  prescribed  by  law,  and 
in  no  way  affect  proceedings  under  existing  law  for  like  offenses.  That  where  prac- 
ticable this  section  shall  be  printed  ou  the  blank  forma  of  vouchers  provided  for 
general  use. 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  549 

preceding  year,  and  has  satisfactorily  shown  that  all  bal- 
ances in  favor  of  the  Government,  which  may  appear  to  be 
in  his  hands,  are  ready  to  be  paid  over  on  the  order  of  the 
Secretary  of  the  Interior. 

1428.  No  funds  belonging  to  any  Indian  tribe  with  which  of^Sff8plication 
treaty  relations  exist  shall  be  applied  in  any  manner  n°^6Jl\ly22Vi46'p' 
authorized  by  such  treaty,  or  by  express  provisions  of  law  ;  28J-ec  2Q97  R  s 
nor  shall  money  appropriated  to  execute  a  treaty  be  trans- 

ferred or  applied  to  any  other  purpose,  unless  expressly 
authorized  by  law. 

1429.  No  part  of  the  moneys  which  may  be  appropriated  tion^Mms  refS 
in  any  general  act  or  deficiency  bill  making  appropriations  nTjjj,es-15  im  c 
for  the  current  and  contingent  expenses  incurred  in  Indian  296,  8.  4,  V.  i6,'P. 
affairs,  to  pay  annuities  due  to  or  to  be  used  and  expended    s'ec.  soos,  R.  s. 
for  the  care  and  benefit  of  any  tribe  or  tribes  of  Indians, 

shall  be  applied  to  the  payment  of  any  claim  for  depreda- 
tions that  may  have  been  or  may  be  committed  by  such 
tribe  or  tribes,  or  any  member  or  members  thereof.  No 
claims  for  Indian  depredations  shall  be  paid  until  Congress 
shall  make  special  appropriation  therefor. 

1430.  No  moneys  which  may  be  appropriated  for  the         d8  for  edu" 


purposes  of  education  among  the  Indian  tribes  shall  be    July  29,  1848,  c. 

118,  s.  2,  v.  9,  p. 

expended  for  any  such  object  elsewhere  than  in  Indian  264- 
country.     But  this  provision  shall  not  apply  to  appropria- 
tions the  expenditure  of  which  is  authorized  by  treaty 
stipulations,  to  be  made  under  the  direction  either  of  the 
President  or  of  the  Indian  tribes,  respectively. 

1431.  No  moneys  or  annuities  stipulated  by  any  treaty  h^SKndians*0 
with  an  Indian  tribe  for  which  appropriations  are  made  17^  gr<22V18iI'  c* 
shall  be  expended  for,  or  paid,  or  delivered  to  any  tribe  5l£ 

N 

which,  since  the  next  preceding  payment  under  such  treaty, 
has  engaged  in  hostilities  against  the  United  States,  or 
against  its  citizens  peacefully  or  lawfully  sojourning  or 
traveling  within  its  jurisdiction  at  the  time  of  such  hostil- 
ities; nor  in  such  case  shall  such  stipulated  payments  or 
deliveries  be  resumed  until  new  appropriations  shall  have 
been  made  therefor  by  Congress.  And  the  Commissioner 
of  Indian  Affairs  shall  report  to  Congress,  at  each  session, 
any  case  of  hostilities,  by  any  tribe  with  which  the  United 
States  has  treaty  stipulations,  which  has  occurred  since  his 
next  preceding  report.1 

1432.  No  delivery  of  goods  or  merchandise  shall  be 


to  the  chiefs  of  any  tribe,  by  authority  of  any  treaty,  if  hr^te 
such  chiefs  have  violated  the  stipulations  contained  in  such  tions-  , 

.  Apr.  10,  1869,  c. 

treaty  upon  their  part.1  is,  s.  2,  v.  ie,  P.  39. 

_  _  __     Sec.  2101,  B.S. 

1  Section  2  of  the  act  of  March  3,  1875  (18  Stat.  L.,  449),  provides  that  no  money 
appropriated  for  the  Indian  service  shall  be  paid  to  any  band  of  Indians  while  said 
band,  or  any  portion  thereof,  ia  at  war  with  the  United'States. 


550  THE   MILITARY    LAWS    OP   THE    UNITED    STATES. 

Moneysduein-     1433.  The  Secretary  of  the  Interior  shall  withhold  from 

dians  holding 

American  cap-  any  tribe  of  Indians  who  may  hold  American  captives,  any 


ay  is,  1870,  moneys  dne  them  from  the  United  States,  until  snch  cap- 
v.w,p.m  '    'tives  have  been  surrendered  to  the  lawful  authorities  of 

S*  the  United  States. 

the  Indians  with     1^34.  No  agreement  shall  be  made  by  any  person  with 
Mar.  3,  1871,  c.  any  tribe  of  Indians,  or  individual  Indians  not  citizens  of 

120,  s.  3,  v.  16,  p.        * 

570;  May  21,  1872,  the  United  States,  for  the  payment  or  delivery  of  any 
IT,  P.^  136;  'Apr-  money  or  other  thing  of  value,  in  present  or  in  prospec- 
18,'  p.'35;CMar'.3,'  tive,  or  for  the  granting  or  procuring  any  privilege  to  him. 

1875,  c.  132,  s.  9,  v.  .  .  ,  ,  .  •'•-•-  .  -i 

is,  p.  450.  or  any  other  person  m  consideration  of  services  tor  said 

'Indians  relative  to  their  lands,  or  to  any  claims  growing- 
out  of,  or  in  reference  to,  annuities,  installments,  or  other 
moneys,  claims,  demands,  or  thing,  under  laws  or  treaties 
with  the  United  States,  or  official  acts  of  any  officers  thereof 
or  in  any  way  connected  with  or  due  from  the  United 
States,  unless  such  contract  or  agreement  be  executed  and 
approved  as  follows  : 

First.  Such  agreement  shall  be  in  writing,  and  a  dupli- 
cate of  it  delivered  to  each  party. 

Second.  It  shall  be  executed  before  a  judge  of  a  court  of 
record,  and  bear  the  approval  of  the  Secretary  of  the 
Interior  and  the  Commissioner  of  Indian  Affairs  indorsed 
upon  it. 

Third.  It  shall  contain  the  names  of  all  parties  in  inter- 
est, their  residence  and  occupation;  and  if  made  with  a 
tribe,  by  their  tribal  authorities,  the  scope  of  authority 
and  the  reason  for  exercising  that  authority,  shall  be  given 
specifically. 

Fourth.  It  shall  state  the  time  when  and  place  where 
made,  the  particular  purpose  for  which  made,  the  special 
thing  or  things  to  be  done  under  it,  and,  if  for  the  collec- 
tion of  money,  the  basis  of  the  claim,  the  source  from 
which  it  is  to  be  collected,  the  disposition  to  be  made  of  it 
when  collected,  the  amount  or  rate  per  centum  of  the  fee 
in  all  cases;  and  if  any  contingent  matter  or  condition 
constitutes  a  part  of  the  contract  or  agreement,  it  shall  be 
specifically  set  forth. 

Fifth.  It  shall  have  a  fixed  limited  time  to  run,  which 
shall  be  distinctly  stated. 

Sixth.  The  judge  before  whom  such  contract  or  agree- 
ment is  executed  shall  certify  officially  the  time  when  and 
place  where  such  contract  or  agreement  was  executed,  and 
that  it  was  in  his  presence,  and  who  are  the  interested 
parties  thereto,  as  stated  to  him  at  the  time;  the  parties 
present  making  the  same;  the  source  and  extent  of  authority 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  551 

claimed  at  the  time  by  the  contracting  parties  to  make 
the  contract  or  agreement,  and  whether  made  in  person 
or  by  agent  or  attorney  of  either  party  or  parties. 

All  contracts  or  agreements  made  in  violation  of  this 
section  shall  be  null  and  void,  and  all  money  or  other  thing 
of  value  paid  to  any  person  by  any  Indian  or  tribe,  or  any 
one  else,  for  or^on  his  or  their  behalf,  on  account  of  such 
services,  in  excess  of  the  amount  approved  by  the  Com- 
missioner and  Secretary  for  such  services,  may  be  recov- 
ered by  suit  iu  the  name  of  the  United  States  in  any  court 
of  the  United  States,  regardless  of  the  amount  in  contro- 
versy; and  one-half  thereof  shall  be  paid  to  the  person 
suing  for  the  same,  and  the  other  half  shall  be  paid  into 
the  Treasury  for  the  use  of  the  Indian  or  tribe  by  or  for 
whom  it  was  so  paid. 

1435.  No  money  shall  be  paid  to  any  agent  or  attorney  ae*  contacts™- 
by  an  officer  of  the  United  States  under  any  such  contract  ^"g6^  1872  c 
or  agreement,  other  than  the  fees  due  him  for  seryices  ^  ^  V^m1]' 
rendered  thereunder;  but  the  moneys  due  the  tribe,  Indian,  0.135,  v.is,  p. "35! 
or  Indians,  as  the  case  may  be,  shall  be  paid  by  the  United 

States,  through  its  own  officers  or  agents,  to  the  party  or 
parties  entitled  thereto;  and  no  money  or  thing  shall  be 
paid  to  any  person  for  services  under  such  contract  or 
agreement,  until  such  person  shall  have  first  filed  with  the 
Commissioner  of  Indian  Affairs  a  sworn  statement,  show- 
ing each  particular  act  of  service  under  the  contract,  giving 
date  and  fact  in  detail,  and  the  Secretary  of  the  Interior 
and  Commissioner  of  Indian  Affairs  shall  determine  there- 
from whether,  in  their  judgment,  such  contract  or  agree- 
ment has  been  complied  with  or  fulfilled;  if  so,  the  same 
may  be  paid,  and,  if  not,  it  shall  be  paid  in  proportion  to 
the  services  rendered  under  the  contract. 

1436.  The  person  so  receiving  such  money  contrary  toal^hesame;pen' 
the  provisions  of  the  two  preceding  sections,  and  his  aiders  ^Q^fV  V18ie'  p' 
and  abettors,  shall,  in  addition  to  the  forfeiture  of  such57**'     '1A_  „ 

'  ^6C.  •alUO,  it.  ». 

sum,  be  punishable  by  imprisonment  for  not  less  than  six 
months,  and  by  a  fine  of  not  less  than  one  thousand  dollars. 
And  it  shall  be  the  duty  of  all  district  attorneys  to  prose- 
cute such  cases  when  applied  to  to  do  so,  and  their  failure 
and  refusal  shall  be  ground  for  their  removal  from  office. 
Any  Indian  agent,  or  other  person  in  the  employment  of 
tlie  United  States,  who  shall,  in  violation  of  the  provisions 
of  the  preceding  section,  advise,  sanction,  or  in  any  way 
aid  in  the  making  of  such  contracts  or  agreements,  or  in 
making  such  payments  as  are  here  prohibited,  shall,  in 
addition  to  the  punishment  herein  imposed  on  the  person 


552  THE   MILITARY   LAWS    OF    THE    UNITED  'STATES. 

making  such  contract,  or  receiving  such  money,  he,  on  con- 
viction, dismissed  from  the  service  of  the  United  States, 
and  be  forever  disqualified  from  holding  any  office  of  profit 
or  trust  under  the  same. 
ofAconf?act8nre8     1^37.  No  assignment  of  any  contracts  embraced  by  sec- 


8tMate<2i  1872  c  ^on  twenty-one  hundred  and  three,  or  of  any  part  of  one 
177,  s.  2,  v.  i7,'p!  shall  be  valid,  unless  the  names  of  the  assignees  and  their 

136;  Apr.  29,  1874,  \  .          §te 

c.  135,  v.  is,  p.  35.  residences  and  occupations  be  entered  in  writing  upon  the 

'  contract,  and  the  consent  of  the  Secretary  of  the  Interior 

and  the  Commissioner  of  Indian  Affairs  to  such  assignment 

be  also  indorsed  thereon. 

Thesame^  ^      1438.  No  payments  shall  be  made  by  any  officer  of  the 

120,  s.'i,'v.  16,'  p!  United  States  to  contractors  for  goods  or  supplies  of  any 
sec.  2107,  B.  s.  sort  furnished  to  the  Indians,  or  for  the  transportation 
thereof,  or  for  any  buildings  or  machinery  erected  or  placed 
on  their  reservations,  under  or  by  virtue  of  any  contract 
entered  into  with  the  Department  of  the  Interior,  or  any 
branch  thereof,  on  the  receipts  or  certificates  of  the  Indian 
agents  or  superintendents  for  such  supplies,  goods,  trans- 
portation, buildings,  or  machinery  beyond  fifty  per  cent,  of 
the  amount  due,  until  the  accounts  and  vouchers  shall 
have  been  submitted  to  the  executive  committee  of  the 
board  of  Indian  commissioners  appointed  by  the  President 
for  examination,  revisal,  and  approval  ;  and  such  board  of 
commissioners  shall,  without  unnecessary  delay,  for- 
ward the  accounts  and  vouchers  so  submitted  to  them 
to  the  Secretary  of  the  Interior,  with  the  reasons  for  their 
approval  or  disapproval  of  the  same,  in  whole  or  in  part, 
attached  thereto  ;  and  the  Secretary  shall  have  power  to 
sustain,  set  aside,  or  modify  the  action  of  the  board, 
and  cause  payment  to  be  made  or  withheld,  as  he  may 
determine. 
Moneys  due  1439.  The  Secretary  of  the  Interior  is  directed  to  cause 

incompetent     or  . 

orphan  Indians,  settlements  to  be  made  with  all  persons  appointed  by 
m.Ve'v.  12,'  p'.  Indian  councils  to  receive  moneys  due  to  incompetent  or 
sec.  2108,  B.  s.  orphan  Indians,  and  to  require  all  moneys  found  due  to 
such  incompetent  or  orphan  Indians  to  be  returned  to  the 
Treasury;  and  all  moneys  so  returned  -shall  bear  interest 
at  the  rate  of  six  per  centum  per  annum,  until  paid  by 
order  of  the  Secretary  of  the  Interior  to  those  entitled  to 
the  same.  No  money  shall  be  paid  to  any  person  appointed 
by  any  Indian  council  to  receive  moneys  due  to  incompe- 
tent or  orphan  Indians,  but  the  same  shall  remain  in  the 
Treasury  of  the  United  States  until  ordered  to  be  paid  by 
the  Secretary  to  those  entitled  to  receive  the  same,  and 
shall  bear  six  per  centum  interest  until  so  paid. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  553 

1440.  Whenever  the  issue  of  food,  clothing,  or  supplies    Number  of  in- 

thaus    present 

of  any  kind  to  Indians  is  provided  for,  it  shall  be  the  duty  at  issues  to  be 

J  J  reported. 

of  the  agent  or  commissioner  issuing  the  same,  at  such    Feb.  I4,i878,e: 
issue  thereof,  whether  it  be  both  of  food  and  clothing,  or  463,' 464.' A' 

Si*<*    21 09  R  S 

either  of  them,  or  of  any  kind  of  supplies,  to  report  to  the 
Commissioner  of  Indian  Affairs  the  number  of  Indians 
present  and  actually  receiving  the  same. 

1441.  The  President  is  authorized  to  cause  such  rations  fo^SSLn™*1011'8 
as  he  deems  proper,  and  as  can  be  spared  from  the  Army  i62,u°ei6,'v8344'p.' 
provisions  without  injury  to  the  service,  to  be  issued,  under  l^w^^'u^' 
such  regulations  as  he  shall  think  fit  to  establish,  to  Indians  17|ec  2no  B  s 
who  may  visit  the  military  posts  or  agencies  of  the  United 

States  on  the  frontiers,  or  in  their  respective  nations;  and 
a  special  account  of  these  issues  shall  be  kept  and  rendered. 

GOVERNMENT  AND   PROTECTION  OF  INDIANS. 

1442.  Every  person  who  sends  any  talk,  speech,  message, 
or  letter  to  any  Indian  nation,  tribe,  chief,  or  individual, 

with  an  intent  to  produce  a  contravention  or  infraction  of  }%}> s- 13>  v<  4- p- 
any  treaty  or  law  of  the  United  States,  or  to  disturb  the   sec.  2111,  B.S. 
peace  and  tranquillity  of  the  United  States,  is  liable  to  a 
penalty  of  two  thousand  dollars. 

1443.  Every  person  who  carries  or  delivers  any  talk, 
message,  speech,  or  letter,  intended  to  produce  a  contra-  pejSe3o,  ISM, c. 
vention  or  infraction  of  any  treaty  or  law  of  the  United  73}; 8' 14)  v-4'p- 
States,  or  to  disturb  the  peace  or  tranquillity  of  the  United   Sec* 2112' B<  s> 
States,  knowing  the  contents  thereof,  to  or  from  any  In- 
dian nation,  tribe,  chief,  or  individual,  from  or  to  any  per- 
son or  persons  whatever,  residing  within  the  United  States, 

or  from  or  to  any  subject,  citizen,  or  agent  of  any  foreign 
power  or  state,  is  liable  to  a  penalty  of  one  thousand 
dollars. 

1444.  Every  person  who  carries  on  a  correspondence,  bye^cerewith°  f<?r- 
letter  or  otherwise,  with  any  foreign  nation  or  power, 

an  intent  to  induce  such  foreign  nation  or  power  to 
any  Indian  nation,  tribe,  chief,  or  individual,  to  war  against  ™fc  8- 15'  v-  4>  P- 
the  United  States,  or  to  the  violation  of  any  existing   sec.  2118,  B.S. 
treaty;  or  who  alienates,  or  attempts  to  alienate,  the  con- 
fidence of  any  Indian  or  Indians  from  the  Government  of 
the  United  States,  is  liable  to  a  penalty  of  one  thousand 
dollars. 

i  1445,  The  President  is  authorized  to  exercise  general  inSnSce^y 
superintendence  and  care  over  any  tribe  or  nation  which  J^J  tribesidere* 
was  removed  upon  an  exchange  of  territory  under  author-  gKaJESSpil1 
ity  of  the  act  of  May  twenty-eighth,  eighteen  hundred  May  28,  isso,  c. 
and  thirty,  "to  provide  for  an  exchange  of  lands  with  thep?4i£.B'  7>  8'  v' 4* 

Sec.  2114,  B.S. 


554  THE    MILITARY   LAWS   OF   THE   UNITED    STATES. 

Indians  residing  in  any  of  the  States  or  Territories,  and  for 
their  removal  west  of  the  Mississippi  ;"  and  to  cause  such 
tribe  or  nation  to  be  protected,  at  their  new  residence, 
against  all  interruption  or  disturbance  from  any  other  tribe 
or  nation  of  Indians,  or  from  any  other  person  or  persons 
whatever.1 
survey  of  in-  1446.  Whenever  it  becomes  necessary  to  survey  any  In- 

dian reserva- 

tions. dian  or  other  reservations,  or  any  lands,  the  same  shall  be 

Apr  8   1864  c 

48,s.6,v.'i3,p.4i'.  surveyed  under  the  direction  and  control  of  the  General 

Sec.  2115,  B.  S.  _ 

Laud-Office,  and  as  nearly  as  may  be  in  conformity  to  the 
rules  and  regulations  under  which  other  public  lands  are 
surveyed. 
white  men     1447.  That  no  white  man,  not  otherwise  a  member  of  any 

marrying  Indian 

women  not  to  ac-  tribe  of  Indians,  who  may  hereafter  marry,    an  Indian 

rights.  woman,  member  of  any  Indian  tribe  in  the  United  States, 

25,  p.  392.          or  any  of  its  Territories  except  the  five  civilized  tribes  in 

the  Indian  Territory,  shall  by  such  marriage  hereafter 

acquire  any  right  to  any  tribal  property,  privilege,  or  inter- 

est whatever  to  which  any  member  of  such  tribe  is  entitled. 

Act  of  August  9,  1888  (25  Stat.  L.,  392). 

Indian  women     1448.  That  every  Indian  woman,  member  of  any  such 

marrying    white 

Sens  become  tribe  of  Indians,  who  may  hereafter  be  married  to  any  citi- 

8«o.2,ftu.  zen  of  the  United  States,  is  hereby  declared  to  become  by 
such  marriage  a  citizen  of  the  United  States,  with  all  the 
rights,  privileges,  and  immunities  of  any  such  citizen, 

Proviso.          being  a  married  woman:  Provided,  That  nothing  in  this 

act  contained  shall  impair  or  in  any  way  aifect  the  right  or 

title  of  such  married  woman  to  any  tribal  property  or  any 

interest  therein,     fyec.  £,  ibid. 

m?r  Jiage3  n  c  e  °f     1449.  That  whenever  the  marriage  of  any  white  man 

sec.3,i&id.  w|th  any  Indian  woman,  a  member  of  any  such  tribe  of 
Indians,  is  required  or  offered  to  be  proved  in  any  judicial 
proceeding,  evidence  of  the  admission  of  such  fact  by  the 
party  against  whom  the  proceeding  is  had,  or  evidence  of 
general  repute,  or  of  cohabitation  as  married  persons,  or  any 
other  circumstantial  or  presumptive  evidence  from  which 
the  fact  may  be  inferred,  shall  be  competent.  /Sec.  <?,  ibid. 

Purchases  or     1450.  No  purchase,  grant,  lease,  or  other  conveyance  of 

grants  from    In-.         ,  -..m 

dians.  lands,  or  01  any  title  or  claim  thereto,  from  any  Indian 

]6i,""ei2/v.  4,'p!  nation  or  tribe  of  Indians,  shall  be  of  any  validity  in  law 
73johnson's  Les-  <>r  equity,  unless  the  same  be  made  by  treaty  or  convention 

8ewh.,^43Intosbl  entered  into  pursuant  to  the  Constitution.     Every  person 
' 


sec.  sue,  R.S.  w]jO?  llot  being  employed  under  the  authority  of  the  United 

i  The  internal  affairs  of  the  Indians  were  never  interfered  with  hy  England,  and. 
the  United  States  has  always  recognized  them  as  nations  separate  from,  but  de- 
pendent upon,  us.  (Worcester  v.  Georgia,  6  Pet.,  515.) 

The  states  can  not  withdraw  Indians  within  their  limits  from  the  operation  of  the 
laws  of  Congress  regulating  trade  with  them.  (U.  S.  v.  Holliday,  3  Wall.,  407.) 

If  the  tribal  organization  is  recognized  by  the  National  Government  as  existing, 
the  States  can  not  regard  it  as  gone.  (The  Kansas  Indians,  5  Wall.,  737.) 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  555 

States,  attempts  to  negotiate  such  treaty  or  convention, 
directly  or  indirectly,  or  to  treat  with  any  such  nation  or 
tribe  of  Indians  for  the  title  or  purchase  of  any  lands  by 
them  held  or  claimed,  is  liable  to  a  penalty  of  one  thousand 
dollars.  The  agent  of  any  State  who  may  be  present  at 
any  treaty  held  with  Indians  under  the  authority  of  the 
Unites  States,  in  the  presence  and  with  the  approbation  of 
the  commissioner  of  the  United  States  appointed  to  hold 
the  same,  may,  however,  propose  to,  and  adjust  with,  the 
Indians  the  compensation  to  be  made  for  their  claim  to 
lands  within  such  State,  which  shall  be  extinguished  by 
treaty. 

1451.  Every  person  who  drives  or  otherwise  conveys  any    Driving  stock 

,        „  ,  .,,  ,    ~       i  to  feed  on  Indian 

stock  oi  horses,  mules,  or  cattle,  to  range  and  leed  on  any  lands. 

-,.  ...  ,.          June  30, 1834,0. 

land  belonging  to  any  Indian  or  Indian  tribe,  without  the  iei,  8.  9,  v.  4,  p. 
consent  of  such  tribe,  is  liable  to  a  penalty  of  one  dollar  u.  s.  v.  Mat- 
for  each  animal  of  such  stock.  tosec.22iiT,"R.4|.' 

1452.  Every  person  who  makes  a  settlement  on  any  lands 
belonging,  secured,  or  granted  by  treaty  with  the  United  ^ns^v^r 
States  to  any  Indian  tribe,  or  surveys  or  attempts  to  sur-    Jna«ao,i834,c. 
vey  such  lands,  or  to  designate  any  of  the  boundaries  by  730'. 

.         .  ii    '     />  Sec.  2118, R.8. 

marking  trees,  or  otherwise,  is  liable  to  a  penalty  ot  one 
thousand  dollars.  The  President  may,  moreover,  take  , 

such  measures  and  employ  such  military  force  as  may 
judge  necessary  to  remove  any  such  person  from  the  lauds.1 

1453.  Whenever  any  Indian,  being  a  member  of  any  band 

or  tribe  with  whom  the  Government  has  or  shall  have  civilized  life. 

June  14, 1862,  c. 

entered  into  treaty  stipulations,  being  desirous  to  adopt  the  101,  s.  i,  v.  12,  P. 

habits  of  civilized  life,  has  had  a  portion  of  the  lands  belong-    s'ec.  2119,  R.S. 

ing  to  his  tribe  allotted  to  him  in  severalty,  in  pursuance 

of  such  treaty  stipulations,  the  agent  and  superintendent 

of  such  tribe  shall  take  such  measures,  not  inconsistent 

with  law,  as  may  be  necessary  to  protect  such  Indian  in 

the  quiet  enjoyment  of  the  lands  so  allotted  to  him. 

1454.  That  upon  the  completion  of  said  allotments  and  bec^«^hip^  to 
the  patenting  of  the  lands  to  said  allottees,  each  and  every 

member  of  the  respective  bands  or  tribes  of  Indians 
whom  allotments  have  been  made  shall  have  the  benefit  of  issr,  v.24,  p.  390'. 
and  be  subject  to  the  laws,  both  civil  and  criminal,  of  the 
State  or  Territory  in  which  they  may  reside;  and  no  Ter- 
ritory shall  pass  or  enforce  any  law  denying  any  such 
Indian  within  its  jurisdiction  the  equal  protection  of  the 
law.  And  every  Indian  born  within  the  territorial  limits 
of  the  United  States  to  whom  allotments  shall  have  been 
made  under  the  provisions  of  this  act,  or  under  any  law  or 


1  Worcester  v.  Georgia,  6  Pet.,  515 ;  Clark  v.  Smith,  13  Pet.,  195 ;  Lattimer  v.  Poteet, 
14  Pet.,  4;  Lowry  v.  Weaver,  4  McLean,  82. 


556  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

treaty,  and  every  Indian  born  within  the  territorial  limits 
of  the  United  States  who  has  voluntarily  taken  up,  within 
said  limits,  his  residence  separate  and  apart  from  any  tribe 
of  Indians  therein,  and  has  adopted  the  habits  of  civilized 
life,  is  hereby  declared  to  be  a  citizen  of  the  United  States, 
and  is  entitled  to  all  the  rights,'  privileges,  and  immunities 
of  such  citizens,  whether  said  Indian  has  been  or  not,  by 
birth  or  otherwise,  a  member  of  any  tribe  of  Indians  within 
the  territorial  limits  of  the  United  States  without  in  any 
manner  impairing  or  otherwise  aifecting  the  right  of  any 
such  Indian  to  tribal  or  other  property.  Sec.  6',  act  of  Feb- 
ruary 8,  1887  (24  Stat.  L.,  390). 
Indians  t  re  s-  1455.  Whenever  any  person  of  Indian  blood  belonging 

E  as  sing   upon 
mds  of  civilized  to  a  band  or  tribe  which  receives  or  is  entitled  to  receive 

jupe  14,1862,0.  annuities  from  the  United  States,  and  who  has  not  adopted 
p>  the  habits  and  customs  of  civilized  life,  and  received  his 
lands  in  severalty  by  allotment,  as  mentioned  in  the  pre- 
ceding section,  commits  any  trespass  upon  the  lands  or 
premises  of  any  Indian  who  has  so  received  his  lands  by 
allotment,  the  superintendent  and  agent  of  such  band  or 
tribe  shall  ascertain  the  damages  resulting  from  such  tres- 
pass, and  the  sum  so  ascertained  shall  be  withheld  from  the 
payment  next  thereafter  to  be  made,  either  to  the  band  or 
tribe  to  which  the  party  committing  such  trespass  shall 
belong,  as  in  the  discretion  of  the  superintendent  he  shall 
deem  proper;  and  the  sum  so  withheld  shall,  if  the  Secre- 
tary of  the  Interior  approves,  be  paid  over  by  the  agent  or 
superintendent  to  the  party  injured. 

Suspension  of     1456,  Whenever  such  trespasser  as  is  mentioned  in  the 

chief  for  tres-  , 

pass.  preceding  section  is  the  chief  or  head-man  of  a  band  or 

JuneU,  1862,  c.  ,    ..         ,.  .     .        ..  „   T     ••.  /v>   •         •      -,  •       •*•    ,    •    . 

101,  s.  3,  v.  12,  p.  tribe,  the  superintendent  of  Indian  affairs  m  his  district 

sec.2i2i,R.s.  shall  also  suspend  the  trespasser  from  his  office  for  three 

months,  and  shall  during  that  time  deprive  him  of  all  the 

benefits  and  emoluments  connected  therewith;   but  the 

chief  or  head-man  may  be  sooner  restored  to  his  former 

standing  if  the  superintendent  shall  so  direct. 

Sale  of  bniid-     1457.  The  Secretary  of  the  Interior  is  authorized  to  cause 

ings  belonging  to 

the    United  all  such  buildings  belonging  to  the  United  States,  as  have 


.  3,  1843,  c.  been,  or  hereafter  shall  be,  erected  for  the  use  of  their 

78,s.l,v.5,  p.611. 

sec.  2122,  B.S.  agents,  teachers,  farmers,  mechanics,  and  other  persons 
employed  amongst  the  Indians,  to  be  sold  whenever  the 
lands  on  which  same  are  erected  have  become  the  property 
of  the  United  States,  and  are  no  longer  necessary  for  such 
purposes. 

Sale  of  lands  1458.  The  Secretary  of  the  Interior  is  authorized  to  cause 
Mar.  s,  i£f%.  to  be  sold,  at  his  discretion,  with  each  of  such  buildings  as 
mentioned  in  the  preceding  section,  a  quantity  of  land 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  557 

not  exceeding  one  section;  and  on  the  payment  of  tlie  con- 
sideration agreed  for  into  the  Treasury  of  the  United  States 
by  the  purchaser,  the  Secretary  shall  make,  execute,  and 
deliver  to  the  purchaser  a  title  in  fee-simple  for  such  lands 
and  tenements. 

1459.  All  penalties  which  shall  accrue  under  this  Title  l  T**™£ls^ow 
shall  be  sued  for  and  recovered  in  an  action  in  the  nature  ^^Jf^Jf  £ 
of  an  action  of  debt,  in  the  name  of  the  United  States,  73Sec.2i24,R.s. 
before  any  court  having  jurisdiction  of  the  same,  in  any 

State  or  Territory  in  which  the  defendant  shall  be  arrested 
or  found,  the  one-half  to  the  use  of  the  informer  and  the 
other  half  to  the  use  of  the  United  States,  except  when  the 
prosecution  shall  be  first  instituted  on  behalf  of  the  United 
States,  in  which  case  the  whole  shall  be  to  their  use. 

1460.  When  goods  or  other  property  shall  be  seized  forag^n°8ctege0^.g8 


any  violation  of  this  Title,  it  shall  be  lawful  for  the  person  16?™%3£  ^  °; 
prosecuting  on  behalf  of  the  United  States  to  proceed  73£C.2125)R.S. 
against   such  goods,  or  other  property,  in   the   manner 
directed  to  be  observed  in  the  case  of  goods,  wares,  or 
merchandise  brought  into  the  United  States  in  violation 
of  the  revenue  laws. 

1461.  In  all  trials  about  the  right  of  property  in  which    Burden    of 
an  Indian  may  be  a  party  on  one  side,  and  a  white  personprjune3o,i834,c. 
on  the  other,  the  burden  of  proof  shall  rest  upon  the  733!  s<    '  v'  '  p' 

Sec  2126  R  S 

white  person,  whenever  the  Indian  shall  make  out  a  pre- 
sumption of  title  in  himself  from  the  fact  of  previous  pos- 
session or  ownership. 

GOVERNMENT   OF   INDIAN   COUNTRY.2 

1462.  The  agent  of  each  tribe  of  Indians,  lawfully  resi(i-  ei.saief  o^cattie, 
ing  in  the  Indian  country,  is  authorized  to  sell  for  the  ans'V  agents. 
benefit  of  such  Indians  any  cattle,  horses,  or  other  live  127,  s.'o.V.  13,'  p! 

563. 
—     Sec.  2127,  R.S. 

1  Title  XXVIII,  Revised  Statutes. 

2  The  term  "Indian  country"  contained  in  section  1  of  the  act  of  June  30,  1834  (4 
Stat.  L.,  79),  though  not  incorporated  m  the  Revised  Statutes,  and  though  repealed 
simultaneously  with  their  enactment,  may  be  referred  to  in  order  to  determine  what 
is  meant  by  the  term  when  used  in  statutes  ;  and  it  applies  to  all  the  country  to 
which  the  Indian  title  has  not  been  extinguished  within  the  limits  of  the  United 
States,  whether  within  a  reservation  or  not,  and  whether  acquired  before  or  since  the 
passage  of  that  act.    Ex  parte  Crow  Dog,  109  IT.  S.,  556  ;  Bates  v.  Clark,  95  U.  S.,  204. 


Held  (October,  1877)  that  the  term  "Indian  country,"  as  employed  in  the  statutes 

igulating  trade  and  intercourse  with  the  Indians  (see,  particularly,  Ch.  IV,  Title 

XXVIII,  Rev.  Stat.),  might  properly  be  denned  in  general  as  including  the  follow- 


ing territory,  viz :  Indian  reservations  occupied  by  Indian  tribes ;  other  districts  so 
occupied  to  which  the  Indian  title  has  not  been  extinguished ;  any  districts  not  in 
other  respects  Indian  country  over  which  the  operation  of  those  statutes  maybe 
extended  by  treaty  or  act.  of  Congress. (a)  (Dig.  J.  A.  Gen.,  450,  par.  1.) 


a  See  this  opinion  as  adopted  and  incorporated  in  G  0. 97,  Headquarters  of  Army, 
1877;  also,  in  the  same  connection,  14  Opins.  Att.  Gen.,  290;  United  States  v.  Fort'y- 
three  Gallons  of  Whisky,  3  Otto,  188;  Bates  v.  Clark,  5  id.,  204;  United  States  v. 
Seveipff,  2  Sawyer,  311.  'That,  in  view  of  the  act  of  March  3, 1873,  extending  to  it 
certain  provisions  of  the  act  of  June  30,  1834,  the  Territory  of  Alaska  is  "Indian 
country,"  so  far  as  concerns  the  introduction  and  disposition  of  spirituous  liquor, 
;md  that  persons  violating  such  provisions  may  therefore  be  arrested  by  military 
force.  See  In  re  Carr,  3  Sawyer,  316 ;  also  citation  from  same  case  in  note  to  ALASKA, 
§  2,  and  14  Opius.  Att.  Gen.,  327. 


558      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

stock  belonging  to  the  Indians,  and  not  required  for  their 
use  and  subsistence,  under  such  regulations  as  shall  be 
established  by  the  Secretary  of  the  Interior.    But  no  such 
sale  shall  be  made  so  as  to  interfere  with  the  execution  of 
any  order  lawfully  issued  by  the  Secretary  of  War,  con- 
nected with  the  movement  or  subsistence  of  troops. 
Trading  with     1463.  Any  loyal  person,  a  citizen  of  the  United  States, 
July  26, 1866,  c.  of  good  moral  character,  shall  be  permitted  to  trade  with 
P  any  Indian  tribe  upon  giving  bond  to  the  United  States  in 
*  the  penal  sum  of  not  less  than  five  nor  more  than  ten  thou- 
sand dollars,  with  at  least  two  good  sureties,  to  be  approved 
by  the  superintendent  of  the  district  within  which  such 
person  proposes  to  trade,  or  by  the  United  States  district 
judge  or  district  attorney  for  the  district  in  which  the 
obligor  resides,  renewable  each  year,  conditioned  that  such 
person  will  faithfully  observe  all  laws  and  regulations  made 
for  the  government  of  trade  and  intercourse  with  the 
Indian  tribes,  and  in  no  respect  violate  the  same. 

trjdif ense  to     1464.  No  person  shall  be  permitted  to  trade  with  any  of 
i6iu?e2° v.^'pl  the  Indians  in  the  Indian  country  without  a  license  there- 
72u  s  -v  cisna  i  ^or  ^rom  a  superintendent  of  Indian  affairs,  or  Indian 
MsCece2i22954R  s  aSen*?  or  sub-agent,  which  license  shall  be  issued  for  a  term 
not  exceeding  two  years  for  the  tribes  east  of  the  Missis- 
sippi, and  not  exceeding  three  years  for  the  tribes  west  of 
that  river.1 

ce?8eefusal  °f  H      1465>  ^nv  superintendent  or  agent  may  refuse  an  appli- 

i6i^se33V844p'  cation  for  a  license  to  trade,  if  he  is  satisfied  that  the 

72s^ec  "ISO  K  s  applicant  is  a  person  of  bad  character,  or  that  it  would  be 

improper  to  permit  him  to  reside  in  the  Indian  country,  or 

if  a  license,  previously  granted  to  such  applicant,  has  been 

revoked,  or  a  forfeiture  of  his  bond  decreed.     But  an 

appeal  may  be  had  from  the  agent  or  the  superintendent 

to  the  Commissioner  of  Indian  Affairs. 

ii<Snirati°n  °f     1466<  The  superintendent  of   the   district    shall   have 

16^U3eo3°V1844'c'P°wer  to  revoke  and  cancel  any  license  to  trade  within 

7sec  2131  B  s  ^e  ^n^an  colllltry  whenever  the  person  licensed  has,  in 

his  opinion,  transgressed  any  of  the  laws  or  regulations 

provided  for  the  government  of  trade  and  intercourse  with 

the  Indian  tribes,  or  whenever,  in  his  opinion,  it  is  improper 

to  permit  such  person  to  remain  in  the  Indian  country.    No 

trade  with  the  tribes  shall  be  carried  on  within  their 

boundary,  except  at  certain  suitable  and  convenient  places, 

to  be  designated  from  time  to  time  by  the  superintendents, 

1  The  Secretary  of  Wai-  has  no  geiieral  authority  to  license  trade  with  Indians  in 
the  Indian  country.  By  section  2129,  Revised  Statutes,  such  licenses  can  be  given 
only  by  a  "superintendent  of  Indian  affairs,  Indian  agent,  or  subagent,"  (Dig.  J. 
A.  Gen.,  p.  448,  par.  1.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  559 

agents,  and  sub-agents,  and  to  be  inserted  in  the  license. 
The  persons  granting  or  revoking  such  licenses  shall 
forthwith  report  the  same  to  the  Commissioner  of  Indian 
Aifairs,  for  his  approval  or  disapproval. 

1467.  The  President  is  authorized,  whenever  in  his  opinion    Prohibition  of 
the  public  interest  may  require  the  same,  to  prohibit  the  President.7 

*  ,.       ,  7  ,       .     ,       ,,          June  30, 1834,  c. 

introduction  of  goods,  or  of  any  particular  article,  into  the  lei,  a.  3,  v.  4,  P. 
country  belonging  to  any  Indian  tribe,  and  to  direct  all '~sec.  2132,  R.S. 
licenses  to  trade  with  such  tribe  to  be  revoked,  and  all 
applications  therefor  to  be  rejected.    No  trader  to  any  other 
tribe  shall,  so  long  as  such  prohibition  may  continue,  trade 
with  any  Indians  of  or  for  the  tribe  against  which  such 
prohibition  is  issued. 

1468.  Any  person  other  than  an  Indian  of  the  full  Wood  J^1^^ 
who  shall  attempt  to  reside  in  the  Indian  country,  or  oa*  jjjjjjj  1834  c 
any  Indian  reservation,  as  a  trader,  or  to  introduce  goods,  i|>i. 

or  to  trade  therein,  without  such  license,  shall  forfeit  ^ 
merchandise  offered  for  sale  to  the  Indians  or  found  in  his 
possession,  and  shall  moreover  be  liable  to  a  penalty  of 
five  hundred  dollars :  Provided,  That  this  section  shall  not 
apply  to  any  person  residing  among  or  trading  with  the 
Choctaws,  Cherokees,  Chickasaws,  Creeks,  or  Seminoles, 
commonly  called  the  five  civilized  tribes,  residing  in  said 
Indian  country,  and  belonging  to  the  Union  Agency  therein : 
And  provided  further,  That  no  white  person  shall  be  em- 
ployed as  a  clerk  by  any  Indian  trader,  except  such  as 
trade  with  said  five  civilized  tribes,  unless  first  licensed  so 
to  do  by  the  Commissioner  of  Indian  Affairs,  under  aud  in 
conformity  to  regulations  to  be  established  by  the  Secre- 
tary of  the  Interior.  Act  of  July  31, 1882  (22  Stat.  L.,  179). 

1469.  Every  foreigner  who  shall  go  into  the  Indian  coun-    Penalty  fox 

. ,       -^  />    i       T     j       •         foreigners  enter- 

try  without  a  passport  from  the  Department  of  the  Interior,  ing  Indian  conn- 
superintendent,  agent,  or  sub-agent  of  Indian  affairs,  or  ports!th 
officer  of  the  United  States  commanding  the  nearest  mili-  IGI  Uane6°'v  844'p! 

fTOn 

tary  post  on  the  frontiers,  or  who  shall  remain  intentionally    sec.  2134,  R.S. 
therein  after  the  expiration  of  such  passport,  shall  be  liable 
to  a  penalty  of  one  thousand  dollars.    Every  such  pass- 
port shall  express  the  object  of  such  person,  the  time  he  is 
allowed  to  remain,  and  the  route  he  is  to  travel. 

1470.  Every  person,  other  than  an  Indian,  who,  within  Prohibited  pur- 

,       -r     T  chases  and  sales. 

the  Indian  country,  purchases  or  receives  of  any  Indian,  in    juneso,  1834,  c. 
the  way  of  barter,  trade,  or  pledge,  a  gun,  trap,  or  other  730'. 8 
article  commonly  used  in  hunting,  any  instrument  of  hus- 
bandry, or  cooking  utensils  of  the  kind  commonly  obtained 
by  the  Indians  in  their  intercourse  with  the  white  people, 


560      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

or  any  article  of  clothing,  except  skins  or  furs,  shall  be 
liable  to  a  penalty  of  fifty  dollars. 
Trading  or  sen-      1471.  If  any  trader,  his  agent,  or  any  person  acting  for 

ing  arms,  etc.,  in  .  '  ~ 

any  district  oc-  or  under  him,  shall  sell  any  arms  or  ammunition  at  his 


o   he  trading-post  or  other  place  within  any  district  or  country 
Indians;  p  n-  OCCUpje(:j_  by  uncivilized  or  hostile  Indians,  contrary  to  the 
liw.lui.VS'S.  -rules  and  regulations  of  the  Secretary  of  the  Interior,  such 
j5JkAlNo.5'2ofvl  trader  shall  forfeit  his  right  to  trade  with  the  Indians,  and 
19s?c.21*88,  R.S.  the  Secretary  shall  exclude  such  trader,  and  the  agent,  or 
other  person  so  oifendiug,  from  the  district  or  country  so 
occupied. 

huPnangbionninf     1472.  E  very  person,  other  than  an  Indian,  who,  within  the 

dijune3osi834  c.  limits  of  any  tribe  with  whom  the  United  States  has  exist- 

i6i,  s.  s,  v.  4,  p.  jng  treaties,  hunts,  or  traps,  or  takes  and  destroys  any 

sec.  2137,  R.S.  peltries  or  game,  except  for  subsistence  in  the  Indian  coun- 

try, shall  forfeit  all  the  traps,  guns,  and  ammunition  in  his 

possession,  used  or  procured  to  be  used  for  that  purpose, 

and  all  peltries  so  taken;  and  shall  be  liable  in  addition  to 

a  penalty  of  five  hundred  dollars. 

movT?ltycl°uTe     1^73.  Every  person  who  drives  or  removes,  except  by 
Intlian  authority  of  an  order  lawfully  issued  by  the  Secretary  of 


127*  sV'v8!^  c>  War,  connected  with  the  movement  or  subsistence  of  troops, 

sea-  '      '    '     any  cattle,  horses,  or  other  stock  from  the  Indian  country 

'  for  the  purposes  of  trade  or  commerce,  shall  be  punishable 

by  imprisonment  for  not  more  than  three  years,  or  by  a  fine 

of  not  more  than  five  thousand  dollars,  or  both.1 

introduction  of     1474.  No  ardent  spirits,  ale,  beer,  wine,  or  intoxicating 

intoxicating  liq- 

uors ioto  Indian  liquor  or  liquors  of  whatever  kind  shall  be  introduced, 

country     fortyd- 

den.    *  under  any  pretense,  into  the  Indian  country.     Every  per- 

July  23,  1892,  v.  ,         J   *  *    J 

27,  p.  260.  son  who  sells,  exchanges,  gives,  barters,  or  disposes  ot  any 

Sec.2l39,R.S.        ,  6  .  ?   .       ,.          ..  * 

ardent  spirits,  ale,  beer,  wine,  or  intoxicating  liquors  of 

any  kind  to  any  Indian  under  charge  of  any  Indian  super- 

intendent or  agent,  or  introduces  or  attempts  to  introduce 

any  ardent  spirits,  ale,  wine,  beer,  or  intoxicating  liquor  of 

any  kind  into  the  Indian  country  shall  be  punished  by 

Penalty.         imprisonment  for  not  more  than  two  years,  and  by  fine  of 

not  more  than  three  hundred  dollars  for  each  offense.    But 

it  shall  be  a  sufficient  defense  to  any  charge  of  introducing 

or  attempting  to  introduce  ardent  spirits,  ale,  beer,  wine,  or 

intoxicating  liquors  into  the  Indian  country  that  the  acts 

^urtLo^^u  charged  were  done  under  authority  in  writing  from  the 

meut.  War  Department,  or  any  officer  duly  authorized  thereunto 

complaints,     by  the  War  Department.     All  complaints  for  the  arrest  of 

any  person  or  persons  made  for  violation  of  any  of  the 

provisions  of  this  act  shall  be  made  in  the  county  where 


1  See  paragraph  1426,  ante. 


THE    MILITARY   LAWS    OF   THE   UNITED    STATES.  561 

the  offense  shall  have  been  committed,  or  if  committed 
upon  or  within  any  reservation  not  included  in  any  county, 
then  in  any  county  adjoining  such  reservation,  and,  if  in 
the  Indian  Territory,  before  the  United  States  court  com- 
missioner, or  commissioner  of  the  circuit  court  of  the 
United  States  residing  nearest  the  place  where  the  offense 
was  committed,  who  is  not  for  any  reason  disqualified ;  but 
in  all  cases  such  arrests  shall  be  made  before  any  United  Arre8ta- 
States  court  commissioner  residing  in  such  adjoining 
county,  or  before  any  magistrate  or  judicial  officer  author- 
ized by  the  laws  of  the  State  in  which  such  reservation  is 
located  to  issue  warrants  for  the  arrest  and  examination  of 
offenders  by  section  ten  hundred  and  fourteen  of  the  Be- 
vised  Statutes  of  the  United  States.  And  all  persons  so 
arrested  shall,  unless  discharged  upon  examination,  be  held 
to  answer  and  stand  trial  before  the  court  of  the  United  Trial- 
States  having  jurisdiction  of  the  offense.1  Act  of  July  23, 
1892  (27  Stat.  L.,  260}. 

1475.  And  no  part  of  section  twenty-one  hundred  and 
thirty-nine  or  of  section  twenty-one  hundred  and  forty  of. 
the  Eevised  Statutes  shall  be  a  bar  to  the  prosecution 

any  officer,  soldier,  sutler  or  storekeeper,  attache,  or  employe  23July.44) 1884>  v> 
of  the  Army  of  the  United  States  who  shall  barter,  do- 
nate, or  furnish  in  any  manner  whatsoever  liquors,  wines, 
beer,  or  any  intoxicating  beverage  whatsoever   to    any 
Indian.     Act  of  July  4,  1884  (23  Stat.  L.,  94). 

1476.  If  any  superintendent  of  Indian  affairs,  Indian  .  Power  of  super- 

J  intendents,  post 

agent,  or  sub-agent,  or  commanding  officer  of  anv  military  agents,  and  com- 

.  •*  manders,  etc.,  to 

post,  has  reason  to  suspect  or  is  informed  that  any  white  search  for  con- 

T     , .          .,  •     ,        i  •     ,        i  n  cealetl  liquors. 

person  or  Indian  is  about  to  introduce  or  has  introduced    Mar.  15, 1864,  c. 
any  spirituous  liquor  or  wine  into  the  Indian  country  in    American  Fur 
violation  of  law,  such  superintendent,  agent,  sub-agent,  or  sss^ 
commanding  officer,  may  cause  the  boats,  stores,  packages,    8ec*  214°5  B's* 

1  The  Secretary  of  War  has  no  general  authority  to  license  the  introduction  of 
spirituous  liquors  into  the  Indian  country.  Under  section  2139,  Kevised  Statutes, 
and  the  act  of  July  23, 1892,  chapter  234,  amending  that  section  and  extending  it  to 
beer  and  other  malt  liquors,  the  Secretary  of  War  is  without  authority  to  permit 
the  introduction  into  that  country  of  any  spirituous  or  malt  liquors  other  than  such 
as  may  be  necessary  for  the  use  of  the  Army.  (Dig.  J.  A.  Gen.,  p.  448,  par.  2.) 

Where  an  enlisted  Indian  soldier  belongs  to  a  tribe  which  remains  "under  the 
charge  of  any  Indian  superintendent  or  agent,"  it  is  an  offense  under  section  2139, 
Kevised  Statutes,  to  sell  him  spirituous  liquor.  Otherwise  if  he  be  attached  to  no 
such  tribe  and  is  under  no  such  "charge."  (a)  (Ibid.,  par.  3.) 

Held  that  there  was  no  statute  of  the  United  States  under  which  the  selling  of 
spirituous  liquor  to  Indian  soldiers  (not  under  the  charge  of  an  Indian  agent),  sta- 
tioned on  aUnited  States  military  reservation,  by  a  civilian  making  the  sales  off  the 
reservation,  could  be  punished  as  an  offense.  (Ibid.,  par.  4.) 

In  view  of  the  terms  of  the  act  of  May  21, 1884,  establishing  a  civil  government 
for  Alaska,  held  that  the  military  authorities  could  no  longer  legally  issue  permits 
for  the  introduction  of  liquors  into  Alaska  under  G.  O.  57  of  1874;  section  14  of  that 
act  being  deemed  impliedly  to  repeal,  as  to  Alaska,  that  portion  of  section  2139, 
Kevised  Statutes,  which  empowered  the  Secretary  of  War  to  authorize  such  intro- 
duction. (&)  (Ibid.,  p.  449,  par.  7.) 


a  U.  S.  v.  Hurshman.  53  Fed.  Kep.,  543. 
b  See  U.  S.  v.  Nelson,  29  Fed.  Kep.,  202. 

1919 36 


562  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

wagons,  sleds,  arid  places  of  deposit  of  such  person  to  be 
searched;  and  if  any  such  liquor  is  found  therein,  the  same, 
together  with  the  boats,  teams,  wagons,  and  sleds  used  in 
conveying  the  same,  and  also  the  goods,  packages,  and 
peltries  of  such  person,  shall  be  seized  and  delivered  to 
the  proper  officer,  and  shall  be  proceeded  against  by  libel 
in  the  proper  court,  and  forfeited,  one-half  to  the  informer 
and  the  other  half  to  the  use  of  the  United  States  5  and  if 
such  person  be  a  trader,  his  license  shall  be  revoked  and 
his  bond  put  in  suit.  It  shall  moreover  be  the  duty  of  any 
person  in  the  service  of  the  United  States,  or  of  any  Indian, 
to  take  and  destroy  any  ardent  spirits  or  wine  found  in  the 
Indian  country,  except  such  as  may  be  introduced  therein 
by  the  War  Department.  In  all  cases  arising  under  this 
and  the  preceding  section  Indians  shall  be  competent  wit- 
nesses.1 
Penalty  for  set-  1477.  Every  person  who  shall,  within  the  Indian  country, 

ting  up  distillery 

hi  Indian  coun-  set  up  or  continue  any  distillery  for  manufacturing  ardent 

1  Jime so,  1834, c.  spirits,  shall  be  liable  to  a  penalty  of  one  thousand  dollars; 

'  4' P'  and  the  superintendent  of  Indian  affairs,  Indian  agent,  or 

41'R*S*  sub-agent,  within  the  limits  of  whose  agency  any  distillery 

of  ardent  spirits  is  set  up  or  continued,  shall  forthwith 

destroy  and  break  up  the  same. 

^Assault;  pen-     1478,  Every  white  person  who  shall  make  an  assault 

*AH2V  i<^ )' uPon  au  Indian?  or  °ther  person,  and  every  Indian  who 

270.    ^'   '    '     shall  make  an  assault  upon  a  white  person,  within  the 

'Indian  country,  with  a  gun,  rifle,  sword,  pistol,  knife,  or 

any  other  deadly  weapon,  with  intent  to  kill  or  maim  the 

person  so  assaulted,  shall  be  punishable  by  imprisonment, 

at  hard  labor,  for  ( not  more  than  five  years,  nor  less  than 

one  year. 

Arson.  1479,  Every  white  person  who  shall  set  fire,  or  attempt 

Mar.  27, 1854,  c. 

26^s.  4,  v.  10,  p.  to  set  fire,  to  any  house,  out-house,  cabin,  stable,  or  other 
Sec. 2143, B. s.  building,  in  the  Indian  country,  to  whomsoever  belonging; 

1  The  act  of  Jiily  4,  1884,  provides  that  no  part  of  section  twenty-one  hundred  and 
thirty-nine  or  of  section  twenty-one  hundred  and  forty  of  the  Revised  Statutes  shall 
be  a  bar  to  the  prosecution  of  any  officer,  soldier,  sutler  or  storekeeper,  attache,  or 
employee  of  the  Army  of  the  United  States  who  shall  barter,  donate,  or  furnish  in 
any  manner  whatsoever  liquors,  wines,  beer,  or  any  intoxicating  beverage  whatso- 
ever to  any  Indian.  (23  Stat.  L.,  76.) 

In  view  of  the  positive  terms  of  section  2140,  Revised  Statutes,  an  officer  of  the 
Army  not  only  may  but  should  "take  and  destroy  any  ardent  spirits  or  wine  found 
in  the  Indian  country  except  such  as  may  be  introduced  therein  by  the  War  Depart- 
ment." The  section  imposes  this  as  a  "duty"  upon  "any  person  in  the  service  of 
the  United  States,"  including,  of  course,  military  as  well  as  civil  officials.  Held,  how- 
ever, that  the  authority  given  by  the  statute  to  destroy  liquor  brought  iuto  an  Indian 
reservation  did  not  authorize  the  destruction  by  the  military  of  a  building,  the  pri- 
vate property  of  a  citizen,  in  which  the  liquor  was  found  stored.  (Dig.  J.  A.  Gen., 
450,  par.  2.) 

In  view  of  the  duty  devolved  by  section  2140,  Revised  Statutes,  upon  ''any  person 
in  the  service  of  the  United  States,"  to  take  and  destroy  spirituous  liquors  in  the 
Indian  country,  held  that  a  post  commander  in  such  country  who  seized  and 
destroyed  a  quantity  of  such  liquors  introduced  into  such  country  without  the 
authority  of  the  Secretary  of  War,  but  not  found  within  the  limits  of  his  military 
command,  had  not  exceeded  his  powers.  (Ibid.,  par.  4.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  563 

and  every  Indian  who  shall  set  tire  to  any  house,  out-house, 
cabin,  stable,  or  other  building,  in  the  Indian  country,  in 
whole  or  in  part  belonging  to  or  in  lawful  possession  of  a 
white  person,  and  whether  the  same  be  consumed  or  not, 
shall  be  punishable  by  imprisonment  at  hard  labor  for  not 
more  than  twenty-one  years,  nor  less  than  two  years. 

1480.  The   general    laws   of   the  United   States    deiiu-  de^fSnsa^ 
ing    and   prescribing  punishments    for    forgery   and    for  mMar.  3,  1355,  c. 
depredations  upon  the  mails,  shall  extend  to  the  Indian  ijjjj,  *-  8'  v-  10'  P- 
country.  Sec.  2144,  it.  s. 

1481.  Except  as  to  crimes  the  punishment  of  which  is  General  laws  re- 

specting    crimes 

expressly  provided  for  in  this  title,  the  general  laws  of  the  extended  to  In- 

dian country. 

United  States  as  to  the  punishment  of  crimes  committed  June  so,  is34, 
in  any  place  within  the  sole  and  exclusive  jurisdiction  of  733;  Mar.  27,1854,' 
the  United  States,  except  the  District  of  Columbia,  shall  270.'  u.s^.Bog- 

,         T    ,       ,,       T      ,  .  ,  ers,  4  How.,  567. 

extend  to  the  Indian  country.1  sec.  2145,  R.S. 

1482.  The  preceding  section  shall  not  be  construed  to  th5^SS5«  of 
extend   to  crimes  committed   by  one  Indian  against  the^t.P£eceding 
person,  or  property  of  another  Indian,  nor  to  any  Indian    Mar.  27,  1854,  c. 

26,  s.  3,  v.  10,  p. 

committing  any  offense  in  the  Indian  country  who  has  270^  Feb.^is,  1^75, 
been  punished  by  the  local  law  of  the  tribe,  or  to  any  case   8*c.2i4e,'B.8. 
where,  by  treaty  stipulations,  the  exclusive  jurisdiction 
over  such  offenses  is  or  may  be  secured  to  the  Indian 
tribes  respectively.2 

1483.  The  superintendent  of  Indian  affairs,  and  the  In-  80ngmovalof  per' 
dian  agents  and  sub-agents,  shall  have  authority  to  remove  c  'JJ™J  j^v1!34' 
from  the  Indian  country  all  persons  found  therein  contrary  ™-  '  ( 

?MM*«  «<l-i  <  ,  1{.  IS* 

to  law  ;  and  the  President  is  authorized  to  direct  the  mili- 
tary force  to  be  employed  in  such  removal.3 

1484.  If  any  person  who  has  been  removed  from   the    Penalty  for  re- 

turn. 
Indian  country  shall  thereafter  at  anytime  return  or  be   Aug.  is,  isse,  c. 

found  within  the  Indian  country,  he  shall  be  liable  to  a  so.  '  8> 

,,  -iin  Sec.  2148,  R.S. 

penalty  01  one  thousand  dollars. 

1485.  The  Commissioner  of  Indian  Affairs  is  authorized    Removal  from 

reservations. 


and  required,  with  the  approval  of  the  Secretary  of  thec  J"™  ^  isss, 
Interior,  to  remove  from  any  tribal  reservation  any  person  332.  '  '"' 
being  therein  without  authority  of  law,  or  whose  presence 
within  the  limits  of  the  reservation  may,  in  the  judgment 

!The  act  of  February  15,  1888,  provides  a  penalty  for  horse  stealing,  etc.,  and  for 
robbery  and  burglary  in  the  Indian  Territory  (25  Stat.  L.,  c.  10,  p.  33).  See  also  act 
of  June  4,  1888  J25  Stat.  L.,  167),  which  authorizes  any  United  States  marshal  to 
execute  process  in  the  Indian  Territory. 

*Bnt  see  section  9  of  the  act  of  March  3,  1885  (23  Stat.  L.,  385),  par.  1496,  post,  which 
extends  the  operation  of  the  criminal  laws  of  the  United  States  to  certain  offenses 
committed  by  one  Indian  against  the  person  or  property  of  another  Indian. 

3Under  section  2147,  Revised  Statutes,  authorizing  the  use  of  the  military  in  the 
removal  from  the  Indian  country  of  "persons  found  therein  contrary  to  law,"  held 
that  the  President  was  authorized  to  direct  that  a  company  of  United  States  troops 
be  stationed  in  the  Indian  Territory  near  the  Kansas  line  to  act  as  at  patrol,  and  to 
apprehend  and  return  within  that  line  any  and  all  lawless  persons,  guilty  of  crimes 
committed  in  Kansas,  who  have  escaped  from  j  ustice  into  the  Indian  country.  (I*ig. 
J.  A.  Gen.,  p.  449,  par.  5.) 


564  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

of  the  Commissioner,  be  detrimental  to  the  peace  and  wel- 
fare of  the  Indians;  and  may  employ  for  the  purpose  such 
force  as  may  be  necessary  to  enable  the  agent  to  effect  the 
removal  of  such  person. 

beredeali?datio^8      I486.  Every  person  who  unlawfully  cuts,  or  aids  or  is 
25UniG6  1888'  v'  emPl°ye(l  *n  unlawfully  cutting,  or  wantonly  destroys  or 
s'ec.  5388,  R.  s.  procures  to  be  wantonly  destroyed,  any  timber  standing 
upon  the  laud  of  the  United  States  which,  in  pursuance  of 
law,  may  be  reserved  or  purchased  for  military  or  other 
Extended  to  in-  purposes,  or  upon  any  Indian  reservation,  or  lands  belong- 
ing to  or  occupied  by  any  tribe  of  Indians  under  authority 
of  the  United  States,  shall  pay  a  fine  of  not  more  than 
five  hundred  dollars  or  be  imprisoned    not  more  than 
twelve  months,  or  both,  in  the  discretion  of  the  court. 
Act  of  June  4,  1888  (25  Mat.  £.,  166). 
Army  officers,      14Q7.  That  all  officers  and  agents    of   the  Army  and 

etc.,    prohibited  » 

from  giving  per-  Indian  Bureaus  are  prohibited,  except  in  a  case  specially 

mission  to  In- 
diana to  go  into  directed   by  the  President,  from  granting   permission  in 

the   State    of  J 

Texas.  writing  or  otherwise  to  any  Indian  or  Indians  on  any  res- 

i83o,v.2i,p?i32.'ervation  to  go  into  the  State  of  Texas  under  any  pretext 

whatever ;  and  any  officer  or  agent  of  the  Army  or  Indian 

Bureau  who  shall  violate  this  provision  shall  be  dismissed 

from  the  public  service.     And  the  Secretary  of  the  Interior 

is  hereby  directed  and  required  to  take  at  once  such  other 

reasonable  measures  as  may  be  necessary  in  connection 

with  said  prohibition  to  prevent  said  Indians  from  entering 

said  State.     Sec.  4,  act  of  May  11,  1880  (21  Stat.  L.,  132). 

ofSEtJJ/foree     1488>  Tlie  milltarv  forces  of  the  United  States  may  be 

in  apprehending  employed  in  such  manner  and  under  such  regulations  as 

persons  violating 

the  law.  the  President  may  direct — 

June  30, 1834,c. 

161,  ss.  21, 23,  v.  4,  First.  In  the  apprehension  of  every  person  who  may  be 
P'sec!si5o, R. s.  in  the  Indian  country  in  violation  of  law;  and  in  convey- 
ing him  immediately  from  the  Indian  country,  by  the  near- 
est convenienfrand  safe  route,  to  the  civil  authority  of  the 
Territory  or  judicial  district  in  which  such  person  shall  be 
found,  to  be  proceeded  against  in  due  course  of  law ; 

Second.  In  the  examination  and  seizure  of  stores,  pack- 
ages, and  boats,  authorized  by  law  5 

Third.  In  preventing  the  introduction  of  persons  and 
property  into  the  Indian  country  contrary  to  law;  which 
persons  and  property  shall  be  proceeded  against  according 
to  law ; 

Fourth.  And  also  in  destroying  and  breaking  up  any 
distillery  for  manufacturing  ardent  spirits  set  up  or  con- 
tinued within  the  Indian  country.1 


1  Under  section  2150,  Revised  Statutes,  a  military  commander  may  be  authorized 
and  directed  by  the  President  to  arrest  by  military  force,  and  deliver  to  the  proper 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  565 

1489.  No  person  apprehended  by  military  force  under  the  )e^)e0t®ntion  of 
preceding  section  shall  be  detained  longer  than  five  days  jjg^  by  the 
after  arrest  and  before  removal.    All  officers  and  soldiers    |^-|^^  g 
who  may  have  any  such  person  in  custody  shall  treat  him 

with  all  the  humanity  which  the  circumstances  will  permit. 

1490.  The  superintendents,  agents,  and  sub-agents  Lhall  gc^JJS* Indians 
endeavor  to  procure  the  arrest  and  trial  of  all  Indians  ac-  s^ty  °J  tc0r0ime- 

June  30, 1834,  c. 

eased  of  committing  any  crime,  offense,  or  misdemeanor,  wi,  s.  10,  v.  4,  p. 

and  of  all  other  persons  who  may  have  committed  crimes    s'ec.2152,  R.  s. 

or  offenses  within  any  State  or  Territory,  and  have  lied 

into  the  Indian  country,  either  by  demanding  the  same 

of  the  chiefs  of  the  proper  tribe,  or  by  such  other  means 

as  the  President  may  authorize.    The  President  may  direct 

the  military  force  of  the  United  States  to  be  employed  in 

the  apprehension  of  such  Indians,  and  also  in  preventing 

or  terminating  hostilities  between  any  of  the  Indian  tribes.1 

1491.  In  executing  process  in  the  Indian  country,  the    Executing?™- 
marshal  may  employ  a  posse  comitatus,  not  exceeding  three    June  u,  i858,c. 

•  *  Jj         cix  x-       i  •        •  163,  s.3,  v.  11,  p. 

persons  in  any  of  the  States  respectively,  to  assist  in  exe-  363. 
cuting  process  by  arresting  and  bringing  in  prisoners  from 
the  Indian  country,  and  allow  them  three  dollars  for  each 
day  in  lieu  of  all  expenses  and  services. 

1492.  Whenever,  in  the  commission,  by  a  white  person, 

any  crime,  offense,  or  misdemeanor,  within  the  Indian  conn-  er'ne30 1834 
try,  the  property  of  any  friendly  Indian  is  taken,  injured,  161« s- 16> v-  •*,  P. 
or  destroyed,  and  a  conviction  is  had  for  such  crime,  offense,    sec.  2154,  R.S. 
or  misdemeanor,  the  person  so  convicted  shall  be  sentenced 
to  pay  to  such  friendly  Indian  to  whom  the  property  may 
belong,  or  whose  person  may  be  injured,  a  sum  equal  to 
twice  the  just  value  of  the  property  so  taken,  injured,  or 
destroyed. 

1493.  If  such  offender  shall  be  unable  to  pay  a  sum  at  Paymentwhere 

,..,.,  the    offender    is 

least  equal  to  the  just  value  or  amount,  whatever  such  pay-  unable  to  make 
ment  shall  fail  short  of  the  same  shall  be  paid  out  of  the  June  30, 1334,  <?. 
Treasury  of  the  United  States.  If  such  offender  cannot  JSi1. 8'  16'v>4'p' 
be  apprehended  and  brought  to  trial,  the  amount  of  such  8ec-215r>»B-s- 
property  shall  be  paid  out  of  the  Treasury.  But  no  Indian 

civil  authorities  for  trial,  any  white  persons  or  Indians  who  may  be  in  the  Indian 
country  engaged  in  furnishing  liquor  to  Indians  in  violation  of  law,  as  also  to  pre- 
vent, by  military  force,  the  entry  into  such  country  of  persons  designing  to  intro- 
duce liquor  therein  contrary  to  law.  Held  that  this  authority  to  prevent  was  clearly 
an  authority  to  arrest,  where  arrests  were  found  necessary  to  restrain  persons 
attempting  to  introduce  liquor  or  other  inhibited  property.  (Dig.  J.  A.  Gen. ,450, 
par.  3.) 

}  Held  thai,  under  section  2152,  Eevised  Statutes,  the  military  forces  may,  by  the 
authority  of  the  President,  be  employed  to  assist  in  making  the  arrest  of  Indians 
concerned  in  the  killing  of  cattle  and  committing  of  depredations  on  the  frontier, 
provided  their offenses  were  committed  in  the  Indian  country  or  by  Indians  under 
the  legal  charge  of  an  Indian  agent.  ( Dig.  J.  A.  Gen.,  449,  par.  6.) 

Held  that,  in  the  execution  of  process  of  arrest  under  the  act  of  March  3,  1885 
'rendering  Indians  amenable  to  the  criminal  laws  of  the  Territories),  the  military 
may,  by  direction  of  the  President,  legally  be  employed  to  aid  the  civil  officials  in 
such  arrests,  such  employment  being  expressly  authorized  by  section  2152,  Eevised 
Statutes.  (Ibid.,  165,  par.  10.) 


566  THE   MILITARY    LAWS    OF   THE    UNITED    STATES. 

shall  be  entitled  to  any  payment  out  of  the  Treasury  of  the 
United  States,  for  any  such  property,  if  he,  or  any  of  the 
nation  to  which  he  belongs,  have  sought  private  revenge, 
or  have  attempted  to  obtain  satisfaction  by  any  force  or 
violence. 

injuries    to     1494.  If  any  Indian,  belonging  to  any  tribe  in  amity  with 
SiaSsrty   y   n  the  United  States,  shall,  within  the  Indian  country,  take 

JuneSO,  1834,  c. 

161,  a.  17,  v.  4,  p.  or  destroy  the  property  of  any  person  lawfully  within  such 
c36k,s68,v.ii,p'.  country,  or  shall  pass  from  Indian  country  into  any  State 
4°s'ec.2i56,K.s.  or  Territory  inhabited  by  citizens  of  the  United  States,  and 
there  take,  steal,  or  destroy,  any  horse,  or  other  property 
belonging  to  any  citizen  or  inhabitant  of  the  United  States, 
such  citizen  or  inhabitant,  his  representative,  attorney,  or 
agent,  may  make  application  to  the  proper  superintendent, 
agent,  or  sub-  agent,  who,  upon  being  furnished  with  the 
necessary  documents  and  proofs,  shall,  under  the  direction 
of  the  President,  make  application  to  the  nation  or  tribe 
to  which  such  Indian  shall  belong,  for  satisfaction  ;  and  if 
such  nation  or  tribe  shall  neglect  or  refuse  to  make  satis- 
faction, in  a  reasonable  time  not  exceeding  twelve  months, 
such  superintendent,  agent,  or  sub-agent  shall  make  return 
of  his  doings  to  the  Commissioner  of  Indian  Affairs,  that 
such  further  steps  may  be  taken  as  shall  be  proper,  in 
the  opinion  of  the  President,  to  obtain  satisfaction  for  the 
injury. 
Superintend.  1495.  The  superintendents,  agents,  and  sub-agents  within 

ents,  etc.,  author  .  ^  .  &  .  ' 

ized  to  take  dep-  their  respective  districts  are  authorized  and  empowered  to 
°  junesb,  1834,  c.  take  depositions  of  witnesses  touching  any  depredations, 
732!  s'  p'  within  the  purview  of  the  three  preceding  sections,  and  to 

*ec.2i57,R.s.  oaths  to  the  deponents. 


1496<  That  immediately  upon  and  after  the  date  of  the 
jecueoitaw8esub'Passa^e  of  tnis  act  a11  Indians,  committing  against  the 
i8»?v.23^pa3853'  Person  or  property  of  another  Indian  or  other  person  any 
of  the  following  crimes,  namely,  murder,  manslaughter, 
rape,  assault  with  intent  to  kill,  arson,  burglary,  and  lar- 
ceny within  any  Territory  of  the  United  States,  and  either 
within  or  without  an  Indian  reservation,  shall  be  subject 
therefor  to   the  laws  of  such  Territory  relating  to  said 
crimes,  and  shall  be  tried  therefor  in  the  same  courts  and 
in  the  same  manner  and  shall  be  subject  to  the  same  pen- 
alties as  are  all  other  persons  charged  with  the  commission 
of  said  crimes,  respectively  ;  and  the  said  courts  are  hereby 
Courts    given  given  jurisdiction  in  all  such  cases;  and  all  such  Indians 

jurisdiction  in  all  .... 

such  cases.  committing  any  of  the  above  crimes  against  the  person  or 
property  of  another  Indian  or  other  person  within  the 
boundaries  of  any  State  of  the  United  States,  and  within 
the  limits  of  any  Indian  reservation,  shall  be  subject  to 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  567 

the  same  laws,  tried  in  the  same  courts  and  in  the  same 
manner,  and  subject  to  the  same  penalties  as  are  all  other 
persons  committing  any  of  the  above  crimes  within  the 
exclusive  jurisdiction  of  the  United  States.  Sec.  9,  act  of 
March  3,  1885  (23  Stat.  L.,  385). 

1497.  That  any  Indian  hereafter  committing  against  the    Assault,    etc., 

,     ,.  ,.  .    *  ,       upon     United 

person  of  any  Indian  agent  or  policeman  appointed  understates  officials; 
the  laws  of  the  United  States,  or  against  any  Indian  p<june 9,  isss,  v. 
United  States  deputy  marshal,  posse  comitatus,  or  guard, 
while  lawfully  engaged  in  the  execution  of  any  United 
States  process,  or  lawfully  engaged  in  any  other  duty 
imposed  upon  such  agent,  policeman,  deputy  marshal, 
posse  comitatus,  or  guard  by  the  laws  of  the  United 
States,  any  of  the  following  crimes,  namely,  murder,  man- 
slaughter, or  assault  with  intent  to  murder,  assault,  or 
assault  and  battery,  or  who  shall  in  any  manner  obstruct 
by  threats  or  violence  any  person  who  is  engaged  in  the 
service  of  the  United  States  in  the  discharge  of  any  of  his 
duties  as  agent,  policeman,  or  other  officer  aforesaid,  within 
the  Indian  Territory,  or  who  shall  hereafter  commit  either 
of  the  crimes  aforesaid,  in  said  Indian  Territory,  against 
any  person  who,  at  the  time  of  the  commission  of  said 
crime^  or  at  any  time  previous  thereto,  belonged  to  either 
of  the  classes  of  officials  hereinbefore  named,  shall  be  sub- 
ject to  the  laws  of  the  United  States  relating  to  such 
crimes,  and  shall  be  tried  by  the  district  court  of  the 
United  States  exercising  criminal  jurisdiction  where  such  Jurisdiction  of 
offense  was  committed,  and  shall  be  subject  to  the  same 
penalties  as  are  all  other  persons  charged  with  the  com- 
mission of  said  crimes,  respectively;  and  the  said  courts 
are  hereby  given  jurisdiction  in  all  such  cases.  Act  of 
June  9, 1888  (25  Stat.  £.,  178), 

1498.  That  after  the  passage  of  this  act  any  United  States    Marshals  to  ex- 

.  .-,,  ecute  process  in. 

marshal  is  hereby  authorized  and  required,  when  necessary  /uno  4,  isss,  v. 
to  execute  any  process  connected  with  any  criminal  pro- 
ceeding issued  out  of  the  circuit  or  district  court  of  the 
United  States  for  the  district  of  which  he  is  marshal,  or  by 
any  commissioner  of  either  of  said  courts,  to  enter  the 
Indian  Territory,  and  to  execute  the  same  therein  in  the 
same  manner  that  he  is  now  required  by  law  to  execute  like 
processes  in  his  own  district.  Act  of  June  4, 1888  (25  Stat. 
L.,  167). 

THE   INDIAN   POLICE. 


1499.  Pay  of  Indian   police:    For  the    services  of  not    The  Indian  po- 
lice . 
exceeding  four  hundred  and  thirty  privates  at  five  dollars    May  27,  ms,  v. 

per  mouth  each,  and  not  exceeding  fifty  officers  at  eight 
dollars  per  month  each,  of  Indian  police,  to  be  employed  in 


568  THE   MILITARY    LAWS    OF   THE    UNITED    STATES. 

maintaining  order  and  prohibiting  illegal  traffic  in  liquor 
on  the  several  Indian  reservations,  thirty  thousand  dollars : 
Provided,  That  Indians  employed  at  agencies  in  any  capacity 
shall  not  be  construed  as  part  of  agency  employees  named 
in  section  five  of  the  act  making  appropriations  for  the 
Indian  service  for  the  fiscal  year  eighteen  hundred  and 
seventy- six,  approved  March  third,  eighteen  hundred  and 
seventy-five.1  Act  of  May  27,  1878  (20  Stat,  L.,  86). 
to  150°-  That  immediately  upon  and  after  the  passage  of 
dis  ^s  ac^  an^  Indians  committing  against  the  person  of  any 
7' T'  *ndian  policeman  appointed  under  the  laws  of  the  United 
States,  or  any  Indian  United  States  deputy  marshal,  while 
lawfully  engaged  in  the  execution  of  any  United  States 
process,  or  lawfully  engaged  in  any  other  duty  imposed 
upon  such  policeman  or  marshal  by  the  laws  of  the  United 
States,  any  of  the  following  crimes,  namely,  murder,  man- 
slaughter, or  assault  with  intent  to  kill,  within  the  Indian 
Territory,  shall  be  subject  to  the  laws  of  the  United  States 
relating  to  such  crimes,  and  shall  be  tried  by  the  district 
court  of  the  United  States  exercising  criminal  jurisdiction 
where  said  offense  was  committed,  and  shall  be  subject  to 
the  same  penalties  as  are  all  other  persons  charged  with  the 
commission  of  said  crimes,  respectively;  and  the  said  courts 
are  hereby  given  jurisdiction  in  all  such  cases.  Act  of 
March  2,  1887  (24  Stat.  L.,  464). 

1  The  establishment  of  Indian  police  has  been  authorized  by  the  several  acts  of 
appropriation  since  that  of  March  27, 1878  (20  Stat.  L.,  86).  The  detachments  of  this 
force  authorized  by  the  Secretary  of  the  Interior  to  be  maintained  at  the  several 
Indian  reservations  are  employed,  under  the  direction  of  the  respective  Indian  agents, 
in  the  preservation  of  order  and  in  the  execution  of  the  laws  relating  to  the  manage- 
ment of  Indians  and  the  government  of  the  Indian  country. 

ALASKA. 

Alaska,  though  unorganized  as  a  Territory,  and  included  in  the  military  depart- 
ment of  the  Columbia,  is  no  more  under  military  government  or  jurisdiction  than 
is  any  other  Territory  or  any  State  of  the  United  States. (a)  (Dig.  J.  A.  Gen.,  147, 
par.  2.) 

a  "  It  is  a  mistake  to  suppose  that  the  Territory  of  Alaska  is  under  military  rule 
any  more  than  any  other  part  of  the  country,  except  as  to  the  introduction  of  spirit- 
uous liquors,  and  the  making  of  arrests  for  violations  of"  the  existing  law  regulat- 
ing their  introduction  and  disposition  (see  INDIAN  COUNTRY,  sec.  1,  note),  in  cases  of 
which  arrests  "the  military  really  act  as  civil  officers  and  in  subordination  to  the 
civil  law."  (In  re  Carr,  3  Sawyer,  318.) 


CHAJPTETR 


EMPLOYMENT  OF  MILITAEY  FOBCE— IN  BESIST- 
ING  INVASION— IN  SUPPRESSING  INSURREC- 
TION—IN SUPPORT  OF  THE  CIVIL  AUTHORITY. 


Par. 

1501.  Power  to  suppress  insurrec- 

tion. 

1502.  Insurrection  against  the 


Par. 


1536-1550.  Civil  rights. 

1551, 1552.  The  elective  franchise. 

1553.  The  public  health. 


United  States.  1554,1555.  The  public  lands;    re- 


1503.  Insurrection  against  a  State. 


moval  of  trespassers. 


1504.  Proclamation  to  insurgents  j  1556    obstructing  the  mails. 


to  disperse. 
1505.  Orders  of  the  President  call- 


1557.  Contracts,  etc.,  in  restraint 
of  trade. 


ing  forth  the   militia  in    1558_1561.  The  Pacific  raiiways. 
case  of  invasion,  etc.  |  1562    Restrictions  upon  the  use  of 


1506.  Militia,  how  apportioned 

1507.  Subject  to  Articles  of  War. 
1508-1513.  Removal     of     persons 


military  force. 
1563-1573.  Neutrality. 
1574-1576.  Extradition. 


from  Indian  reservations.     1577_1585.  The  guano  islands. 
1514-1535.  Suspension  of   inter-  |  1586.1593>  Treason, 
course. 

INSURRECTION  AGAINST   THE   UNITED   STATES. 

1501.  Whenever  insurrection,  domestic  violence,  unlawful    Power  to  sup- 

...  ,-,,  ,      ,  press  insurrec- 

combinations,  or  conspiracies  in  any  State  so  obstructs  or  tion. 

hinders  the  execution  of  the  laws  thereof,  and  of  the  United  22, 8p3,v.  i?,  p.  u. 

States,  as  to  deprive  any  portion  or  class  of  the  people  of 

such  State  of  any  of  the  rights,  privileges,  or  immunities, 

or  protection,  named  in  the  Constitution  and  secured  by 

the  laws  for  the  protection  of  such  rights,  privileges,  or 

immunities,  and  the  constituted  authorities  of  such  State 

are  unable  to  protect,  or,  from  any  cause,  fail  in  or  refuse 

protection  of  the  people  in  such  rights,  such  facts  shall  be 

deemed  a  denial  by  such  State  of  the  equal  protection  of 

the  laws  to  which  they  are  entitled  under  the  Constitution 

of  the  United  States ;  and  in  all  such  cases,  or  whenever 

any  such  insurrection,  violence,  unlawful  combination,  or 

conspiracy,  opposes  or  obstructs  the  laws  of  the  United 

States,  or  the  due  execution  thereof,  or  impedes  or  obstructs 

569 


570  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

the  due  course  of  justice  under  the  same,  it  shall  be  lawful 
for  the  President,  and  it  shall  be  his  duty,  to  take  such 
measures,  by  the  employment  of  the  militia  or  the  land  and 
naval  forces  of  the  United  States,  or  of  either,  or  by  other 
means,  as  he  may  deem  necessary,  for  the  suppression  of 
such  insurrection,  domestic  violence,  or  combinations.1 
insurrection  1502.  Whenever,  by  reason  of  unlawful  obstructions,  com- 

against  the  Gov-  7    . 

eminent  of  the  binations,  or  assemblages  of  persons,  or  rebellion  against 
Ujufy2k9,i86i',c.  the  authority  of  the  Government  of  the  United  States,  it 
Hi.8' lf  v'     P  shall  become  impracticable,  in  the  judgment  of  the  Presi- 
sec.5298,n.s.  ^QI1^  .£o  enforce?  by  the  ordinary  course  of  judicial  proceed- 
ings, the  laws  of  the  United  States  within  any  State  or 
Territory,  it  shall  be  lawful  for  the  President  to  call  forth 
the  militia  of  any  or  all  the  States,  and  to  employ  such  parts 
of  the  land  and  naval  forces  of  the  United  States  as  he 
may  deem  necessary  to  enforce  the  faithful  execution  of  the 
laws  of  the  United  States,  or  to  suppress  such  rebellion,  in 
whatever  State  or  Territory  thereof  the  laws  of  the  United 
States  may  be  forcibly  opposed,  or  the  execution  thereof 
forcibly  obstructed.2 

INSURRECTION   AGAINST   A   STATE. 

a  Snst™state°n     1503.  In  case  of  an  insurrection  in  any  State  against  the 
Feb.  28, 1795,  c.  government  thereof,  it  shall  be  lawful  for  the  President, 

36,  s.  1,  v.  l,p.  424;  ° 

Mar.  3, 1807,  c.  39,  on  application  of  the  legislature  of  such  State,  or  of  the 
v  sec!' 6297,  R.  s.  executive,  when  the  legislature  can  not  be  convened,  to  call 
forth  such  number  of  the  militia  of  any  other  State  or  States, 
which  may  be  applied  for,  as  he  deems  sufficient  to  sup- 
press such  insurrection;  or,  on  like  application,  to  employ, 
for  the  same  purposes,  such  part  of  the  land  or  naval  forces 
of  the  United  States  as  he  deems  necessary.3 

1  The  power  to  enforce  its  laws  and  to  execute  its  functions  in  all  places  does  not 
derogate  from  the  power  of  the  State  to  execute  its  laws  at  the  same  time  and  in  the 
same  places.    The  one  does  not  exclude  the  other  except  where  both  can  not  be  exe- 
cuted at  the  same  time.    In  that  case  the  words  of  the  Constitution  itself  show  which 
is  to  yield;  "this  Constitution  and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof ;    *    *    *    shall  be  the  supreme  law  of  the  land." 

Although  no  State  could  establish  and  maintain  a  permanent  military  government, 
yet  it  may  use  its  military  power  to  put  down  an  armed  insurrection  too  strong  to  bo 
controlled  by  the  civil  authority.  The  State  must  determine  for  itself  what  degree 
of  force  the  crisis  demands.  (Luther  v.  Borden,  7  How.,  1;  see  also  16  Opin.  Att. 
Gen.,  162.)  See  also  note  to  paragraph  1556,  post. 

2  The  National  Government  has  the  right  to  use  physical  force  in  any  part  of  the 
United  States  to  compel  obedience  to  its  laws,  and  to  carry  into  execution  the  powers 
conferred  upon  it  by  the  Constitution .     "We  hold  it  to  be  an  incon  trovertible  principle 
that  the  Government  of  the  United  States  may,  by  means  of  physical  force,  exercised 
through  its  official  agents,  execute  on  every  foot  of  American  soil  the  powers  and 
functions  that  belong  to  it."     (Ex  parte  Siebold,  100  U.  S.,  371, 395 ;  U.  S.  v.  Neagle,  135 
U.  S.,  1,  60;  Logan  v.  U.  S.,  144  U.  S.,  263,  294.) 

As  a  necessary  incident  of  the  power  to  declare  and  prosecute  war,  the  Federal 
Government  has  a  right  to  transport  troops  through  and  over  the  territory  of  any 
State  of  the  Union.  (Crandall  v.  Nevada,  6  Wall.,  35.  See  also  16  Opin.  Att.  Gen., 
162;  17  ibid.,  242,  333;  19 ibid.,  293,  and  note  to  par.  1556,  post.) 

3  Under  article  4,  section  4,  of  the  Constituti6n,  the  Army  may  be  employed  to  pro- 
tect a  State  from  "invasion"  or  "domestic  violence"  only  by  order  of  the' President, 
made  ' '  on  application  of  the  legislature,  or  of  the  executive  when  the  legislature  can 
not  bo  convened."    A  military  commander,  of  whatever  rank  or  command,  can  hnvo 
no  authority,  except  by  the  order  thus  made  of  the  President,  to  furnish  troops  to  a 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  571 

1504.  Whenever,  in  the  judgment  of  the  President,  it    Proclamation 

7         to  insurgents  to 


becomes  necessary  to  use  the  military  forces  under  1861 

Title,  the  President  shall  forthwith,  by  proclamation,  com-  25,  s.  2,  v.  12,  'P! 
rnand  the  insurgents  to  disperse  and  retire  peaceably  to  "  sec.  5300,  R.  s. 
their  respective  abodes,  within  a  limited  time. 

INVASION. 

1505.  Whenever  the  United  States  are  invaded,  or  are  in  . 
imminent  danger  of  invasion  from  any  foreign  nation  or 
Indian  tribe,  or  of  rebellion  against  the  authority  of  the  et«;eb  2g 
Government  of  the  United  States,  it  shall  be  lawful  ^OY3Q^^1^- 
the  President  to  call  forth  such  number  of  the  militia  of  the  12  wh.,  19  ;  MC- 
State  or  States,  most  convenient  to  the  place  of  danger,  Phiia.,  259. 

or  scene  of  action,  as  he  may  deem  necessary  to  repel  such 
invasion,  or  to  suppress  such  rebellion,  and  to  issue  his 
orders  for  that  purpose  to  such  officers  of  the  militia  as  he 
may  think  proper.1 

1506.  When  the  militia  of  more  than  one  State  is 


into  the  actual  service  of  the  United  States  by  the  Presi-  /uly  17-  1862.  c. 

201,  s.  1,  v.  12,  p. 

dent,  he  shall  apportion  them  among  such  States  according  597. 

Sec.  1648,  R.  S. 

to  representative  population. 

governor  or  other  functionary  of  a  State,  to  aid  him  in  making  arrests  or  establish- 
ing law  and  order.  (Dig.  Opin.  J.  A.  Gen.,  161,  par.  1.) 

The  proviso  of  the  Constitution,  "when  the  legislature  can  not  be  convened," 
may  be  said  to  mean  when  it  is  not  in  session,  or  can  not,  by  the  State  law,  be  as- 
sembled forthwith  or  in  time  to  provide  for  the  emergency.  When  it  is  in  session, 
or  can  legally  and  at  once  be  called  together,  it  will  not  be  lawful  for  the  President 
to  employ  the  army  on  the  application  merely  of  the  governor.  (Ibid.,  par.  2.) 

A  military  force  employed  according  to  article  4,  section  4,  of  the  Constitution,  is 
to  remain  under  the  direction  and  orders  of  the  President  as  Commander  in  Chiet 
and  his  military  subordinates;  it  can  not  be  placed  under  the  direct  orders  or  exclu- 
sive disposition  of  the  governor  of  the  State.  (Ibid.,  par.  3.) 

In  all  cases  of  civil  disorders  or  domestic  violence  it  is  the  duty  of  the  Army  to 
preserve  an  attitude  of  indifference  and  inaction  till  ordered  to  act  'by  the  President, 
by  the  authority  of  the  Constitution  or  of  section  2150,  5297,  or  5298,  Revised  Statutes, 
or  other  public  statute.  An  officer  or  soldier  may,  indeed,  interfere  to  arrest  a  person 
in  the  act  of  committing  a  crime,  or  to  prevent  a  breach  of  the  peace  in  his  presence, 
but  this  he  does  as  a  citizen  and  not  in  his  military  capacity.  Any  combined  eftbrfc 
by  the  military,  as  such,  to  make  arrests  or  otherwise  prevent  breaches  of  the  peace 
or  violations  of  law  in  civil  cases,  except  by  the  order  of  the  President  or  the  require- 
ment of  a  United  States  official  authorized  to  require  their  services  on  a  posse  corn- 
itatus,  must  necessarily  be  illegal.  In  a  case  of  civil  disturbance  in  violation  of  the 
laws  of  a  State,  a  military  commander  can  not  volunteer  to  intervene  with  his  com- 
mand without  incurring  a  personal  responsibility  for  his  acts.  In  the  absence  of  the 
requisite  orders  he  may  not  even  march  or  array  his  command  for  the  purpose  of  ex- 
erting a  moral  effect  or  any  effect  in  terrorem;  such  a  demonstration,  indeed,  could 
only  compromise  the  authority  of  the  United  States,  while  insulting  the  sovereignty 
of  the  State.  (Ibid.,  164,  par.  7.) 

See  also  General  Orders  No.  26,  Adjutant-General's  Office,  of  1894  (A.  R.,  487),  for 
instructions  as  to  the  use  of  the  military  force  in  support  of  the  civil  authority. 

!The  act  of  February  28,  1795  (1  Stat.  L.,  424),  authorizing  the  President,  under  cer- 
tain circumstances,  to  call  out  the  militia,  is  constitutional,  and  the  President  is 
the  final  judge  of  the  emergency  justifying  such  a  call.  (Martin  v.  Mott,  12  Wheat., 
19.)  By  this  act  the  power  of  deciding  whether  the  exigency  had  arisen  upon  which 
the  Government  of  the  United  States  is  bound  to  interfere  is  given  to  the  President. 
He  is  to  act  upon  the  application  of  the  legislature,  or  of  the  executive,  and  conse- 
quently he  must  determine  what  body  of  men  constitute  the  legislature,  and  who  is 
the  governor,  before  he  can  act.  The  fact  that  both  parties  claim  the  right  to  the 
government  can  not  alter  the  case,  for  both  can  not  be  entitled  to  it.  If  there  is  an 
armed  conflict,  like  the  one  of  which  we  are  speaking,  it  is  a  case  of  domestic  violence, 
and  one  of  the  parties  must  be  in  insurrection  against  the  lawful  government.  And 
the  President  must,  of  necessity,  decide  which  is  the  government,  and  which  party  is 
unlawfully  arrayed  against  it,  'before  he  can  perform  the  duty  imposed  upon  him  by 
the  act  of'  Congress.  (Luther  v.  Borden,  7  How.,  I,  II.) 

In  the  case  of  Houston  v.  Moore  (5  Wheat.,  1),  it  was  decided  that  although  a  mili- 
tiaman who  refused  to  obey  the  orders  of  the  President  calling  Mm  into  the  public 
service  was  not,  in  the  sense  of  the  act  of  February  28,  1795,  "employed  in  the  serv- 
ice of  the  United  States,  "  so  as  to  be  subject  to  the  Rules  and  Articles  of  War,  yet  that 


572  THE    MILITARY   LAWS   OF    THE    UNITED    STATES. 

1507.  The  niilitia,  when  called  into  the  actual  service  of 


. 

Feb.  28,  1795,  c.  the  United  States  for  the  suppression  of  rebellion  against 
424;  July  29,  1861,  and  resistance  to  the  laws  of  the  United  States,  shall  be 
282.'  s  P  subject  to  the  same  rules  and  articles  of  war  as  the  regular 

S*  troops  of  the  United  States. 

EMPLOYMENT    OF   TROOPS   ON   INDIAN   RESERVATIONS. 

Removal  of     1508.  The  superintendent  of  Indian  affairs,  and  the  In- 

persons  from  In-  *  > 

dian  r«serva-  <jian  agents  and  sub-agents,  shall  have  authority  to  remove 

june3M834,  c.  from  the  Indian  country  1  all  persons  found  therein  contrary 

730!  '  to  law;  and  the  President  is  authorized  to  direct  the  inili- 

Sec.2147,R.S.  . 

tary  force  to  be  employed  in  such  removal. 

Penalty  for  re-  1509.  If  any  person  who  has  been  removed  from  the 
1  Aug.  is,  isse,  c.  Indian  country  shall  thereafter  at  anytime  return  or  be 
so.  '  t  P'  found  within  the  Indian  country,  he  shall  be  liable  to  a 

Sec<2148'R's*  penalty  of  one  thousand  dollars.1 

Removal  from     1510.  The  Commissioner  of  Indian  Affairs  is  authorized 

June  12,  isss,  c.  and  required,  with  the  approval  of  the  Secretary  of  the 

155,  s.  2,  v.  11,  p.  .    M 

332.  Interior,  to  remove  from  any  tribal  reservation  any  person 

Sec.  2149,B.  S.        .  .'••*•  ^       -*.        e  i  i 

being  therein  without  authority  of  law,  or  whose  presence 
within  the  limits  of  the  reservation  may,  in  the  judgment 
of  the  Commissioner,  be  detrimental  to  the  peace  and  wel- 
fare of  the  Indians  5  and  may  employ  for  the  purpose  such 
force  as  may  be  necessary  to  enable  the  agent  to  effect  the 
removal  of  such  person. 
Employ  men  t  1511.  The  military  forces  of  the  United  States  may  be 

of  the  military  in  J  J 

apprehending  employed  in  such  manner  and  under  such  regulations  as 

personsviolating  ,,       _ 

the  law.  the  President  may  direct  — 

June30,  1834,  c.        _,.  T       .,  ,  , 

161,  ss.  21,  23,  v.  4,  First.  In  the  apprehension  of  every  person  who  may  be 
p\sec!  2i5o,R.  s.  in  the  Indian  country  in  violation  of  law;  and  in  convey- 
ing him  immediately  from  the  Indian  country,  by  the  near- 
est convenient  and  safe  route,  to  the  civil  authority  of  the 
Territory  or  judicial  district  in  which  such  person  shall  be 
found,  to  be  proceeded  against  in  due  course  of  law; 

Second.  In  the  examination  and  seizure  of  stores,  pack- 
ages, and  boats,  authorized  by  law  ; 

Third.  In  preventing  the  introduction  of  persons  and  prop- 
erty into  the  Indian  country  contrary  to  law;  which  persons 
and.  property  shall  be  proceeded  against  according  to  law; 

Fourth.  And  also  in  destroying  and  breaking  up  any  dis- 
tillery for  manufacturing  ardent  spirits  set  up  or  continued 
within  the  Indian  country. 

he  was  liable  to  be  tried  for  the  offense  under  the  fifth  section  of  the  same  act,  by 
court-martial  called  under  the  authority  of  the  United  States.  The  great  doubt  in 
that  case  was  whether  the  delinquent  was  liable  to  be  tried  for  the  offense  by  a 
court-martial  organized  under  State  authority.  (Martin  v.  Mott,  12  Wheat.,  19,  34.) 

1  For  a  definition  of  the  term  "Indian  country,"  see  the  chapter  entitled  THE 
INDIANS,  ETC. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  573 


1512,  No  person  apprehended  by  military  force  under  the  ££^0*°*  r°f 
preceding  section  shall  be  detained  longer  than  five  days     /ed  by  the 


after  arrest  and  before  removal.    All  officers  and  soldiers 

,  .  ,  .  L     i         -i     -i-i   j_         j.   -i  •          Sec.  2151,R.  S. 

who  may  have  any  such  person  111  custody  shall  treat  him 
with  all  the  humanity  which  the  circumstances  will  permit. 

1513.  The  superintendents,  agents,  and  sub-agents  shall 
endeavor  to  procure  the  arrest  and  trial  of  all  Indians  ac- 

cused  of  committing  any  crime,  offense,  or  misdemeanor,  }^  8-  19>  v-  4>  P- 

and  of  all  other  persons  who  may  have  committed  crimes    see.2i52,B.s. 

or  offenses  within  any  State  or  Territory,  and  have  fled 

into  the  Indian  country,  either  by  demanding  the   same 

of  the  chiefs  of  the  proper  tribe,  or  by  such  other  means 

as  the  President  may  authorize.    The  President  may  direct 

the  military  force  of  the  United  States  to  be  employed  in 

the  apprehension  of  such  Indians,  and  also  in  preventing 

or  terminating  hostilities  between  any  of  the  Indian  tribes.1 

SUSPENSION   OF   INTERCOURSE. 

1514.  Whenever  the  President,  in  pursuance  of  the  pro-  oJ^J8,?1,?-"1!  £ 
visions  of  this  Title,  has  called  forth  the  militia  to  suppress  tejc12uri!>1861  c 
combinations  against  the  laws  of  the  United  States,  and  to  !U-  A  ^12^25?; 
cause  the  laws  to  be  duly  executed,  and  the  insurgents  shall  32,  v.  12,  p.  234.' 

,  n       -I          1        !  T  1  ,1  •  I  •  J  1      -I  J  T  -»-»  •  ^eC*  5801)  K.  O. 

have  failed  to  disperse  by  the  time  directed  by  the  Presi- 
dent, and  when  the  insurgents  claim  to  act  under  the 
authority  of  any  State  or  States,  and  such  claim  is  not  dis- 
claimed or  repudiated  by  the  persons  exercising  the  func- 
tions of  government  in  such  State  or  States,  or  in  the  part 
or  parts  thereof  in  which  such  combination  exists,  and  such 
insurrection  is  not  suppressed  by  such  State  or  States,  or 
whenever  the  inhabitants  of  any  State  or  part  thereof  are 
at  any  time  found  by  the  President  to  be  in  insurrection 
against  the  United  States,  the  President  may,  by  procla- 
mation, declare  that  the  inhabitants  of  such  State,  or  of 
any  section  or  part  thereof  where  such  insurrection  exists, 
are  in  a  state  of  insurrection  against  the  United  States  ; 
and  thereupon  all  commercial  intercourse  by  and  between 
the  same  and  the  citizens  thereof  and  the  citizens  of  the 
rest  of  the  United  States  shall  cease  and  be  unlawful  so 
long  as  such  condition  of  hostility  shall  continue;  and  all 
goods  and  chattels,  wares  and  merchandise,  coming  from 
such  State  or  section  into  the  other  parts  of  the  United 
States,  or  proceeding  from  other  parts  of  the  United  States 
to  such  State  or  section,  by  land  or  water,  shall,  together 
with  the  vessel  or  vehicle  conveying  the  same,  or  conveying 


JSee,  also,  for  authority  to  use  military  force  in  connection  with  Indian  reserva- 
tions and  for  the  protection  of  Indians, 'sections  2118,  2147,  2150,  2151,  and  2152,  lie- 
vised  Statutes,  and  the  chapter  entitled  THE  INDIANS,  ETC. 


574  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

persons  to  or  from  such  State  or  section,  be  forfeited  to 
the  United  States.1 
in  loyal  states.     1515.  Whenever  any  part  of  a  State  not  declared  to  be 

July  2,  18G4,  c.  .       .  .  .       . 

225,8.5,  v.  is,  p.  m  insurrection  is  under  the  control  of  insurgents,  or  is  in 
sec.  5302,  B.S.  dangerous  proximity  to  places  under  their  control,  all  com- 
mercial intercourse  therein  and  therewith  shall  be  subject 
to  the  prohibitions  and  conditions  of  the  preceding  section 
for  such  time  and  to  such  extent  as  shall  become  necessary 
to  protect  the  public  interests,  and  be  directed  by  the  Sec- 
retary of  the  Treasury,  with  the  approval  of  the  President. 
TO  whom  pro-     1516.  The  provisions  of  this  Title  in  relation  to  commer- 

hibition  shall  ex- 

tesec  4  ibid  cial  intercourse  shall  apply  to  all  commercial  intercourse 
sec.  5303,  R.  s.  by  and  between  persons  residing  or  being  within  districts 
within  the  lines  of  national  military  occupation  in  the 
States  or  parts  of  States  declared  in  insurrection,  whether 
with  each  other  or  with  persons  residing  or  being  within 
districts  declared  in  insurrection  and  not  within  those  lines ; 
and  all  persons  within  the  United  States,  not  native  or 
naturalized  citizens  thereof,  shall  be  subject  to  the  same 
prohibitions,  in  all  commercial  intercourse  with  inhabitants 
of  States  or  parts  of  States  declared  in  insurrection,  as 
citizens  of  States  not  declared  to  be  in  insurrection. 
Commercial  in-  1517.  The  President  may.  in  his  discretion,  license  and 

tercourse,  to 

what  extent  per- permit  commercial  intercourse  with  any  part  of  such  State 

mitted. 

July  is.  1861,  c.  or  section,  the  inhabitants  of  which  are  so  declared  in  a 

3,  s.  5,  v.  12,  p.  257; 

Juiy2,i864,c.225,  state  of  insurrection,  so  far  as  maybe  necessary  to  author- 
8'sec'.5304,JB.'s.ize  supplying  the  necessities  of  loyal  persons  residing  in 
insurrectionary  States,  within  the  lines  of  actual  occupa- 
tion by  the  military  forces  of 'the  United  States,  as  indi- 
cated by  published  order  of  the  commanding  general  of 
the  department  or  district  so  occupied  j  and,  also,  so  far  as 
may  be  necessary  to  authorize  persons  residing  within  such 
lines  to  bring  or  send  to  market  in  the  loyal  States  any 
products  which  they  shall  have  produced  with  their  own 
labor  or  the  labor  of  freedmen,  or  others  employed  and  paid 
by  them,  pursuant  to  rules  relating  thereto,  which  may  be 
established  under  proper  authority.  And  no  goods,  wares, 
or  merchandise  shall  be  taken  into  a  State  declared  in 
insurrection,  or  transported  therein,  except  to  and  from 
such  places  and  to  such  monthly  amounts  as  shall  have 
been  previously  agreed  upon,  in  writing,  by  the  command- 
ing general  of  the  department  in  which  such  places  are 
situated,  and  an  officer  designated  by  the  Secretary  of  the 
Treasury  for  that  purpose.  Such  commercial  intercourse 


i  The  Reform,  2  Wall.,  258;  ibid.,  3  Wall.,  6J7;  U.  S.  v.  Weed,  5  Wall.,  02;  The 
Iliimpton.  5  Wall.,  372;  The  Ouachita  Cotton,  6  Wall.,  521;  The  Venice.  2  Wall.,  258; 
Cutnerv.  TJ.  S.,  17  Wall.,  517. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  575 

shall  be  in  such  articles  and  for  such  time  and  by  such 
persons  as  the  President,  in  his  discretion,  may  think  most 
conducive  to  the  public  interest;  and,  so  far  as  by  him 
licensed,  shall  be  conducted  and  carried  on  only  in  pur- 
suance of  rules  and  regulations  prescribed  by  the  Secretary 
of  the  Treasury.1 

1518.  The  Secretary  of  the  Treasury  may  appoint  such 
officers  at  places  where  officers  of  the  customs  are  not  now 
authorized  by  law  as  may  be  needed  to  carry  into  effect  M^s, ^12,,  p.^67; 
such  licenses,  rules,  and  regulations.    In  all  cases  where  171,  a.  28,  v.  is',  p. 
officers  of  the  customs,  or  other  salaried  officers,  are  ap-   sec.  5305,  R.  s. 
pointed  by  him  to  carry  into  effect  such  licenses,  rules,  and 
regulations,  such  officer  shall  be  entitled  to  receive  one 
thousand  dollars  a  year  for  his  services,  in  addition  to  his 

salary  or  compensation  under  any  other  law.  But  the  ag- 
gregate compensation  of  any  such  officer  shall  not  exceed 
the  sum  of  five  thousand  dollars  in  any  one  year. 

1519.  Every  officer  of  the  United  States,  civil,  military,  0£%^^- 
or  naval,  and  every  sutler,  soldier,  marine,  or  other  person,  225Uslyio2V18i3'  ? 
who  takes,  or  causes  to  be  taken  into  a  State  declared  to  37£ 

»ec.OoOb,  K.  o. 

be  in  insurrection,  or  to  any  other  point  to  be  thence  taken 
into  such  State,  or  who  transports  or  sells,  or  otherwise 
disposes  of  therein,  any  goods,  wares,  or  merchandise 
whatsoever,  except  in  pursuance  of  license  and  authority 
of  the  President,  as  provided  in  this  Title,  or  who  makes 
any  false  statement  or  representation  upon  which  license 
and  authority  is  granted  for  such  transportation,  sale,  or 
other  disposition,  or  who,  under  any  license  or  authority 
obtained,  willfully  and  knowingly  transports,  sells,  or  other- 
wise disposes  of  any  other  goods,  wares,  or  merchandise 
than  such  as  are  in  good  faith  so  licensed  arid  authorized, 
or  who  willfully  and  knowingly  transports,  sells,  or  dis- 
poses of  the  same,  or  any  portion  thereof,  in  violation  of 
the  terms  of  such  license  or  authority,  or  of  any  rule  or 
regulation  prescribed  by  the  Secretary  of  the  Treasury 
concerning  the  same,  or  who  is  guilty  of  any  act  of  embez- 
zlement, of  willful  misappropriation  of  public  or  private 
money  or  property,  of  keeping  false  accounts,  or  of  willfully 
making  any  false  returns,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  shall  be  fined  not  more  than  five  thousand 
dollars,  and  imprisoned  in  the  penitentiary  not  more  than 
three  years.  Violations  of  this  section  shall  be  cognizable 
before  any  court,  civil  or  military,  competent  to  try  the 
same. 


JThe  Sea  Lion,  5  Wall.,  630;  The  Ouachita  Cotton,  G  Wall.,  521;  Coppell  v.  Hall,  7 
Wall.,  542;  McKee  v.  U.  S.,  8  Wall.,  163;  TJ.  S.  v.  Lane,  8  Wall.,  185. 


576  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

investigations     1520.  It  shall  be  the  duty  of  the  Secretary  of  the  Treas- 

to  detect  frauds. 

ibid.  ury,  from  time  to  time,  to  institute  such  investigations  as 

Sec.  5307,  R.S.  7  ,/>-i-ii 

may  be  necessary  to  detect  and  prevent  frauds  and  abuses 
in  any  trade  or  transactions  which  may  be  licensed  between 
inhabitants  of  loyal  States  and  of  States  in  insurrection. 
And  the  agents  making  such  investigations  shall  have 
power  to  compel  the  attendance  of  witnesses,  and  to  make 
examinations  on  oath. 


prCo°pe8rCty°emf     1521'  Wneiiever  during  any  insurrection  against  the 
ployed  in  'aid  oi  Government  of  the  United  States,  after  the  President  shall 

insurrection. 


8^>  °-  have  declared  by  proclamation  that  the  laws  of  the  United 
319.  '   '  States  are  opposed,  and  the  execution  thereof  obstructed, 

'  by  combinations  too  powerful  to  be  suppressed  by  the  ordi- 
nary course  of  judicial  proceedings,  or  by  the  power  vested 
in  the  marshals  by  law,  any  person,  or  his  agent,  attor- 
ney, or  employe,  purchases  or  acquires,  sells  or  gives,  any 
property  of  whatsoever  kind  or  description,  with  intent  to 
use  or  employ  the  same,  or  suffers  the  same  to  be  used  or 
employed  in  aiding,  abetting,  or  promoting  such  insurrec- 
tion or  resistance  to  the  laws,  or  any  person  engaged  therein  ; 
or  being  the  owner  of  any  such  property,  knowingly  uses 
or  employs,  or  consents  to  such  use  or  employment  of  the 
same,  all  such  property  shall  be  lawful  subject  of  prize 
and  capture  wherever  found;  and  it  shall  be  the  duty  of 
the  President  to  cause  the  same  to  be  seized,  confiscated, 
and  condemned.1 

WhereTad!ng8'     1522.  Such  prizes  and  capture  shall  be  condemned  in  the 
6o,AsUg2,6V18i62,'  p!  district  or  circuit  court  of  the  United  States  having  juris- 
c^^^Vis'.  diction  of  the  amount,  or  in  admiralty  in  any  district  in 
sec.6309,  K.  s.  wnicn  the  same  [may]  be  seized,  or  into  which  they  may  be 
taken  and  proceedings  first  instituted. 

1523.  No  property  seized  or  taken  upon  any  of  the  inland 
waters  of  the  United  States  by  the  naval  forces  thereof 
37sec.53io,  E.  s.  sua^  ^e  regarded  as  maritime  prize;  but  all  property  so 
seized  or  taken  shall  be  promptly  delivered  to  the  proper 
officers  of  the  courts. 

mHsThaFirbeein".     1524>  The  Attorney-General,  Or  the  attorney  of  the  United 

stated.  States  for  any  judicial  district  in  which  such  property  may 

68,s.3,v.  i2,  p.319.'  at  the  time  be,  may  institute  the  proceedings  of  coudemua- 

'  tion,  and  in  such  case  they  shall  be  wholly  for  the  benefit 

of  the  United  States;  or  any  person  may  file  an  informa- 

tion with  such  attorney,  in  which  case  the  proceedings 

shall  be  for  the  use  of  such  informer  and  the  United  States 

in  equal  parts.2 

i  Mrs.  Alexander's  Cotton,  2  Wall.,  404;  Union  Ins.  Co.  v.  U.  S.,  6  Wall.,  759;  Arm- 
strong's Foundry,  6  Wall.,  7GG  ;  Morris's  Cotton,  8  Wall.  ,  507  ;  U.  S.  v.  Shares  of  Capital 
Stock,  5Blatch.,231. 

"Francis  v.  U.S.,  5  Wall.,  338;  Confiscation  Cases,  7  Wall.,  454;  Miller  v.TJ.  S.,  11 
Wall.,  268;  Tyler  v.  Defrees,  11  Wall.,  331. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  577 


1525.  The  Secretary  of  the  Treasury  is  authorized  to  pro- 
hibit  and  prevent  the  transportation  in  any  vessel,  or  upontion  of  goods  to 

J  f        aid  insurrection. 

any  railroad,  turnpike,  or  other  road  or  means  of  transpor-    May  20,  1862,  c. 

tation  within  the  United  States,  of  any  property,  whatever    sec.'53i2,pB.  s.' 

may  be  the  ostensible  destination  of  the  same,  in  all  cases 

where  there  are  satisfactory  reasons  to  believe  that  such 

property  is  intended  for  any  place  in  the  possession  or 

under  the  control  of  insurgents  against  the  United  States, 

or  that  there  is  imminent  danger  that  such  property  will 

fall  into  the  possession  or  under  the  control  of  such  insur- 

gents ;  and  he  is  further  authorized,  in  all  cases  where  he 

deems  it  expedient  so  to  do,  to  require  reasonable  security 

to  be  given  that  property  shall  not  be  transported  to  any 

place  under  insurrectionary  control,  and  shall  not,  in  any 

way,  be  used  to  give  aid  or  comfort  to  such  insurgents; 

and  he  may  establish  all  such  general  or  special  regulations 

as  may  be  necessary  or  proper  to  carry  into  effect  the  pur- 

poses of  this  section;  and  if  any  property  is  transported  in 

violation  of  this  act,  or  of  any  regulation  of  the  Secretary 

of  the  Treasury,  established  in  pursuance  thereof,  or  if  any 

attempt  shall  be  made  so  to  transport  any,  it  shall  be 

forfeited.1 

1528.  All  persons  in  the  military  or  naval  service  of  the  Prohibition 
United  States  are  prohibited  from  buying  or  selling,  trading, 
or  in  any  way  dealing  in  captured  or  abandoned  property, 
whereby  they  shall  receive  or  expect  any  profit,  benefit,  or  277'.  8'  10)  v'  13>  p' 
advantage  to  themselves,  or  any  other  person,  directly  or  Sec-°813»B-s' 
indirectly  connected  with  them;  and  it  shall  be  the  duty 
of  such  person  whenever  such  property  comes  into  his  pos- 
session or  custody,  or  within  his  control,  to  give  notice 
thereof  to  some  agent,  appointed  by  virtue  of  this  Title, 
and  to  turn  the  same  over  to  such  agent  without  delay. 
Any  officer  of  the  United  States,  civil,  military,  or  naval, 
or  any  sutler,  soldier,  or  marine,  or  other  person  who  shall 
violate  any  provision  of  this  section,  shall  be  deemed  guilty 
of  a  misdemeanor,  and  shall  be  fined  not  more  than  five 
thousand  dollars,  and  imprisoned  in  the  penitentiary  not 
more  than  three  years.  Violations  of  this  section  shall  be 
cognizable  before  any  court,  civil  or  military,  competent  to 
try  the  same. 

1527.  Whenever  the  President  shall  deem  it  impracti-    change  of  port 

,•,1  /.         i         r>   ,  ,  .        ,  .  ,of  entry  in  case 

cable,  by  reason  01  unlawful  combinations  of  persons  in  of  insurrection. 
opposition  to  the  laws  of  the  United  States,  to  collect  the  3,  1 
duties  on  imports  in  the  ordinary  way,  at  any  port  of  entry   Se 
in  any  collection-district,  he  may  cause  such  duties  to  be 


i  Gay's  Gold,  13  Wall.,  358. 

1919 37 


578  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

collected  at  any  port  of  delivery  in  the  district  until  such 
obstruction  ceases;  in  such  case  the  surveyor  at  such  port 
of  delivery  shall  have  the  powers  and  be  subject  to  all  the 
obligations  of  a  collector  at  a  port  of  entry.  The  Secretary 
of  the  Treasury,  with  the  approval  of  the  President,  shall 
also  appoint  such  weighers,  gangers,  measurers,  inspectors, 
appraisers,  and  clerks  as  he  may  deem  necessary,  for  the 
faithful  execution  of  the  revenue  laws  at  such  port  of 
delivery,  and  shall  establish  the  limits  within  which  such 
port  of  delivery  is  constituted  a  port  of  entry.  And  all  the 
provisions  of  law  regulating  the  issue  of  marine  papers, 
the  coasting- trade,  the  warehousing  of  imports,  and  the 
collection  of  duties,  shall  apply  to  the  ports  of  entry  thus 
constituted,  in  the  same  manner  as  they  do  to  ports  of 
entry  established  by  law. 

tomehousaelofcu8"  1528t  Wnenever,  at  any  port  of  entry,  the  duties  on  irn- 
^sec.  2,  did.,  p.  ports  cannot,  in  the  judgment  of  the  President,  be  collected 
.Mar.s,  1875,  c.  in  the  ordinary  way,  or  by  the  course  provided  in  the  pre- 
469.  '  ceding  section,  by  reason  of  the  cause  mentioned  therein, 
'he  may  direct  that  the  custom-house  for  the  district  be 
established  in  any  secure  place  within  the  district,  either 
on  land  or  on  board  any  vessel  in  the  district,  or  at  sea  near 
the  coast;  and  in  such  case  the  collector  shall  reside  at 
such  place,  or  on  shipboard,  as  the  case  may  be,  and  there 
detain  all  vessels  and  cargoes  arriving  within  or  approach- 
ing the  district,  until  the  duties  imposed  by  law  on  such 
vessels  and  their  cargoes  are  paid  in  cash.  But  if  the 
owner  or  consignee  of  the  cargo  on  board  any  vessel  thus 
detained,  or  the  master  of  the  vessel,  desires  to  enter  a  port 
of  entry  in  any  other  district  where  no  such  obstructions 
to  the  execution  of  the  laws  exist,  the  master  may  be  per- 
mitted so  to  change  the  destination  of  the  vessel  and  cargo 
in  his  manifest;  whereupon  the  collector  shall  deliver  him 
a  written  permit  to  proceed  to  the  port  so  designated.  And 
the  Secretary  of  the  Treasury,  with  the  approval  of  the 
President,  shall  make  proper  regulations  for  the  enforce- 
ment on  shipboard  of  such  provisions  of  the  laws  regu- 
lating the  assessment  and  collection  of  duties  as  in  his 
judgment  may  be  necessary  and  practicable. 

Precedingme8necf     1529'  It:  slia11  ke  unlawful  to  take  any  vessel  or  cargo 
U  Ju8iy  12 1861  c  detained  under  the  preceding  section  from  the  custody  of 
3'Iec' s'siVk2^'  ^e  Pr°Per  om%cers  of  the  customs,  unless  by  process  of  some 
court  of  the  United  States;  and  in  case  of  any  attempt 
otherwise  to  take  such  vessel  or  cargo  by  any  force,  or  com- 
bination, or  assemblage  of  persons,  too  great  to  be  overcome 
by  the  officers  of  the  customs,  the  President,  or  such  person 


THE    MILITARY   LAWS    OP   THE    UNITED    STATES.  579 

as  he  shall  have  empowered  for  that  purpose,  may  employ 
such  part  of  the  Army  or  Navy  or  militia  of  the  United 
States,  or  such  force  of  citizen  volunteers  as  may  be  neces- 
sary, to  prevent  the  removal  of  such  vessel  or  cargo,  and 
to  protect  the  officers  of  the  customs  in  retaining  the  cus- 
tody thereof. 

1530.  Whenever,  in  any  collection-district,  the  duties  on    -Entire  district 

.  .  '  closed  to  entry. 

imports  cannot,  in  the  judgment  of  the  President,  be  col-  sec.<MWd. 
lected  in  the  ordinary  way,  nor  in  the  manner  provided  by 
the  three  preceding  sections,  by  reason  of  the  cause  men- 
tioned in  section  fifty-three  hundred  and  fourteen  [Eev. 
Stat.],1  the  President  may  close  the  port  of  entry  in  that 
district ;  and  shall  in  such  case  give  notice  thereof  by  proc- 
lamation. And  thereupon  all  right  of  importation,  ware- 
housing, and  other  privileges  incident  to  ports  of  entry 
shall  cease  and  be  discontinued  at  such  port  so  closed  until 
it  is  opened  by  the  order  of  the  President  on  the  cessation 
of  such  obstructions.  Every  vessel  from  beyond  the  United 
States,  or  having  on  board  any  merchandise  liable  to  duty, 
which  attempts  to  enter  any  port  which  has  been  closed 
under  this  section,  shall,  with  her  tackle,  apparel,  furni- 
ture, and  cargo,  be  forfeited. 

1531.  In  the  execution  of  laws  providing  for  the  col-    vessels  in  ad- 
lection  of  duties  on  imports  and  tonnage,  the  President,  nu»  cutters  migr 

,  .....  .  ,        be  employed. 

in  addition  to  the  re  venue- cutters  in  service,  may  employ    see.7,«wdk 

^!A*»    ""  *i  I  £    R  W 

in  aid  thereof  such  other  suitable  vessels  as  may,  in  his 
judgment,  be  required. 

1532.  From  and  after  fifteen  days  after  the  issuing  of  the    Forfeiture  of 
proclamation,  as  provided  in  section  fifty-three  hundred  Tng  to  citieenTS 
and  one  [Eev.  Stat.],2  any  vessel  belonging  in  whole  or  iiistet™°tioliary 
part  to  any  citizen  or  inhabitant  of  such  State  or  part  of  sec?53i9,R.s. 
a  State  whose  inhabitants  are  so  declared  in  a  state  of 
insurrection,  found  at  sea,  or  in  any  port  of  the  rest  of  the 

United  States,  shall  be  forfeited.3 

1533.  The  Secretary  of  the  Treasury  is  authorized  to    Refusal  of 

.        clearance  to  ves- 

refuse  a  clearance  to  any  vessel  or  other  vehicle  laden  with  seis  laden  with 

,          ,.          -.i.-in  P  ,  •  suspected  mer- 

merchandise,  destined  for  a  foreign  or  domestic  port,  when-  change. 
ever  he  shall  have  satisfactory  reason  to  believe  that  Bach  * i,  £yif^.  12,  £ 
merchandise,  or  any  part  thereof,  whatever  may  be  its  4°sec. 5320,  B.S. 
ostensible  destination,  is  intended  for  ports  in  possession 
or  under  control  of  insurgents  against  the  United  States; 
and  if  any  vessel  for  which  a  clearance  or  permit  has  been 
refused  by  the  Secretary  of  the  Treasury,  or  by  his  order, 
shall  depart  or  attempt  to  depart  for  a  foreign  or  domestic 

1  Paragraph  1527,  ante. 

2  Paragraph  1514,  ante. 

8  The  Schooner  Keeling,  Blatch.  Pr.  Cas.,  92. 


580  THE   MILITARY    LAWS   OF   THE    UNITED    STATES. 

port  without  being  duly  cleared  or  permitted,  such  vessel, 
with  her  tackle,  apparel,  furniture,  and  cargo,  shall  be 
forfeited. 

ci?a^ce.up°n  1534-  Whenever  a  permit  or  clearance  is  granted  for 
lec!532id'B.s.  e^her  a  foreign  or  domestic  port,  it  shall  be  lawful  for  the 
collector  of  the  customs  granting  the  same,  if  he  deems  it 
necessary,  under  the  circumstances  of  the  case,  to  require 
a  bond  to  be  executed  by  the  master  or  the  owner  of  the 
vessel,  in  a  penalty  equal  to  the  value  of  the  cargo,  and 
with  sureties  to  the  satisfaction  of  such  collector,  that  the 
cargo  shall  be  delivered  at  the  destination  for  which  it  is 
cleared  or  permitted,  and  that  no  part  thereof  shall  be  used 
in  affording  aid  or  comfort  to  any  person  or  parties  in 
insurrection  against  the  authority  of  the  United  States. 
d^n"dU?es8Ceis!  1535.  In  all  cases  wherein  any  vessel,  or  other  property, 
M??iyBf  c' *8  condemned  in  any  proceeding  by  virtue  of  any  laws 
sec.  6322,  R.s.  relating  to  insurrection  or  rebellion,  the  court  rendering 
judgment  of  condemnation  shall,  notwithstanding  such 
condemnation,  and  before  awarding  such  vessel,  or  other 
property,  or  the  proceeds  thereof,  to  the  United  States,  or 
to  any  informer,  first  provide  for  the  payment,  out  of  the 
proceeds  of  such  vessel,  or  other  property,  of  any  bona- 
fide  claims  which  shall  be  filed  by  any  loyal  citizen  of  the 
United  States,  or  of  any  foreign  state  or  power  at  peace 
and  amity  with  the  United  States,  intervening  in  such  pro- 
ceeding, and  which  shall  be  duly  established  by  evidence 
as  a  valid  claim  against  such  vessel,  or  other  property, 
under  the  laws  of  the  United  States  or  any  State  thereof 
not  declared  to  be  in  insurrection.  No  such  claim  shall  be 
allowed  in  any  case  where  the  claimant  has  knowingly 
participated  in  the  illegal  use  of  such  ship,  vessel,  or  other 
property.  This  section  shall  extend  to  such  claims  only  as 
might  have  been  enforced  specifically  against  such  vessel, 
or  other  property,  in  any  State  not  declared  to  be  in  insur. 
rection,  wherein  such  claim  arose.1 

CIVIL   RIGHTS. 

umilratheirliht8  1536<  A11  Persons  within  the  jurisdiction  of  the  United 
nf  s^eV^ie'p'  states  sna11  ^ave  tn^  same  right  in  every  State  and  Terri- 
144'^Mai-^ M875.  tory  to  make  and  enforce  contracts,  to  sue,  be  parties,  give 

Psec6'i977  R  s  evidence>  and  to  tae  ful1  aud  equal  benefit  of  all  laws  and 
proceedings  for  the  security  of  persons  and  property  as  is 
enjoyed  by  white  citizens,  and  shall  be*  subject  to  like  pun- 
ishment, pains,  penalties,  taxes,  licenses,  and  exactions  of 
every  kind,  and  to  no  other. 

1The  Hampton,  5  Wall.,  372. 


THE   MILITARY   LAWS  OF   THE   UNITED   STATES.  581 

1537.  All  citizens  of  the  United  States  shall  have  the    Bights  of  da- 

zens  inrespectto 

same  right,  in  every  State  and  Territory,  as  is  enjoyed  by  ™ai  and  personal 
white  citizens  thereof  to  inherit,  purchase,  lease,  sell,  hold,    Apr.  g.'isee.  c. 

J31,8.1,v.l4,p.27. 

and  convey  real  and  personal  property.  sec.i978,R.s. 


1538.  Every  peron  who,  under  color  of  any  statute, 
ordinance,  regulation,  custom,  or  usage,  of  any  State  or^  ig7i  c 
Territory,  subjects,  or  causes  to  be  subjected,  any  citizen  of  2V  -1-*  9l7'%™'- 
Die  United  States  or  other  person  within  the  jurisdiction 

thereof  to  the  deprivation  of  any  rights,  privileges,  or  im- 
munities secured  by  the  Constitution  and  laws,  shall  be 
liable  to  the  party  injured  in  an  action  at  law,  suit  in  equity, 
or  other  proper  proceeding  for  redress. 

1539.  First.  If  two  or  more  persons  in  any  State  or  Ter-    jjfyll^i  c 
ritory  conspire  to  prevent,  by  force,  intimidation,  or  threat,  ^rv-  ^im^i' 
any  person  from  accepting  or  holding  any  office,  trust,  or  Mkr'  Y'  1875'  ^c' 
place  of  confidence  under  the  United  States,  or  from  dis-  ™*<  '*•  2'-  v-  is.  P- 
charging  any  duties  thereof  ;  or  to  induce  by  like  means    sec.i980,R.s. 
any  officer  of  the  United  States  to  leave  any  State,  district, 

or  place,  where  his  duties  as  an  officer  are  required  to  be 
performed,  or  to  injure  him  in  his  person  or  property  on 
account  of  his  lawful  discharge  of  the  duties  of  his  office, 
or  while  engaged  in  the  lawful  discharge  thereof,  or  to 
injure  his  property  so  as  to  molest,  interrupt,  hinder,  or 
impede  him  in  the  discharge  of  his  official  duties  ; 

Second.  If  two  or  more  persons  in  any  State  or  Territory 
conspire  to  deter,  by  force,  intimidation,  or  threat,  any 
party  or  witness  in  any  court  of  the  United  States  from 
attending  such  court,  or  from  testifying  to  any  matter 
pending  therein,  freely,  fully,  and  truthfully,  or  to  injure 
such  party  or  witness  in  his  person  or  property  on  account 
of  his  having  so  attended  or  testified,  or  to  influence  the 
verdict,  presentment,  or  indictment  of  any  grand  or  petit 
juror  in  any  such  court,  or  to  injure  such  juror  in  his  per- 
son or  property  on  account  of  any  verdict,  presentment,  or 
indictment  lawfully  assented  to  by  him,  or  of  his  being  or 
having  been  such  juror;  or  if  two  or  more  persons  conspire 
for  the  purpose  of  impeding,  hindering,  obstructing,  or 
defeating,  in  any  manner,  the  due  course  of  justice  in  any 
State  or  Territory,  with  intent  to  deny  to  any  citizen  the 
equal  protection  of  the  laws,  or  to  injure  him  or  his  prop- 
erty for  lawfully  enforcing,  or  attempting  to  enforce,  the 
right  of  any  person,  or  class  of  persons,  to  the  equal  pro- 
tection of  the  laws; 

Third.  If  two  or  more  persons  in  any  State  or  Territory 
conspire,  or  go  in  disguise  on  the  highway  or  on  the  prem- 
ises of  another,  for  the  purpose  of  depriving,  either  directly 
or  indirectly,  any  person  or  «kiss  of  persons  of  the  equal 


582  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

protection  of  the  laws,  or  of  equal  privileges  and  immunities 
under  the  laws;  or  for  the  purpose  of  preventing  or  hinder- 
ing the  constituted  authorities  of  any  State  or  Territory 
from  giving  or  securing  to  all  persons  within  such  State  or 
Territory  the  equal  protection  of  the  laws  ;  or  if  two  or  more 
persons  conspire  to  prevent  by  force,  intimidation,  or  threat, 
any  citizen  who  is  lawfully  entitled  to  vote,  from  giving 
his  support  or  advocacy  in  a  legal  manner,  toward  or  in 
favor  of  the  election  of  any  lawfully  qualified  person  as  an 
elector  for  President  or  Yice-President,  or  as  a  member  of 
Congress  of  the  United  States  ;  or  to  injure  any  citizen  in 
person  or  property  on  account  of  such  support  or  advocacy; 
in  any  case  of  conspiracy  set  forth  in  this  section,  if  one 
or  more  persons  engaged  therein  do,  or  cause  to  be  done, 
any  act  in  furtherance  of  the  object  of  such  conspiracy, 
whereby  another  is  injured  in  his  person  or  property,  or 
deprived  of  having  and  exercising  any  right  or  privilege 
of  a  citizen  of  the  United  States,  the  party  so  injured  or 
deprived  may  have  an  action  for  the  recovery  of  damages, 
occasioned  by  such  injury  or  deprivation,  against  any  one 
or  more  of  the  conspirators. 

1540.  Every  person  who,  having  knowledge  that  any  of 
the  wrongs  conspired  to  be  done,  and  mentioned  in  the 
22,  s.  6,'  v.i7,  p.  is.  preceding  section,  are  about  to  be  committed,  and  having 

Soc«  1981  5  Ik.  S« 

power  to  prevent  or  aid  in  preventing  the  commission  of 
the  same,  neglects  or  refuses  so  to  do,  if  such  wrongful  act 
be  committed,  shall  be  liable  to  the  party  injured,  or  his 
legal  representatives,  for  all  damages  caused  by  such 
wrongful  act,  which  such  person  by  reasonable  diligence 
could  have  prevented;  and  such  damages  maybe  recov- 
ered in  an  action  on  the  case;  and  any  number  of  persons 
guilty  of  such  wrongful  neglect  or  refusal  may  be  joined 
as  defendants  in  the  action  ;  and  if  the  death  of  any  party 
be  caused  by  any  such  wrongful  act  and  neglect,  the  legal 
representatives  of  the  deceased  shall  have  such  action 
therefor,  and  may  recover  not  exceeding  five  thousand  dol- 
lars damages  therein,  for  the  benefit  of  the  widow  of  the 
deceased,  if  there  be  one,  and  if  there  be  no  widow,  then 
for  the  benefit  of  the  next  of  kin  of  the  deceased.  But  no 
action  under  the  provisions  of  this  section  shall  be  sus- 
tained which  is  not  commenced  within  one  year  after  the 
cause  of  action  has  accrued. 

1541<  The  District  attorneys,  marshals,  and  deputy  mar- 


ecute.  shals,  the  commissioners  appointed  by  the  circuit  and  ter- 

Apr.  9,  1866,  c.     ..       .    , 

si,  s.  4,  v.  14,  p.ritonal  courts,  with  power  to  arrest,  imprison,  or  bail 
o.  iu,  £  LV.  ie|  offenders,  and  every  other  officer  who  is  especially  em- 
p'seei  i982,B.s.powered  by  the  President,  are  authorized  and  required,  at 


THE   MILITARY   LAWS   OF  THE   UNITED   STATES.  583 

the  expense  of  the  United  States,  to  institute  prosecutions 
against  all  persons  violating  any  of  the  j^rovisions  of 
chapter  seven  of  the  Title  "  CRIMES,"  and  to  cause  such 
persons  to  be  arrested,  and  imprisoned  or  bailed,  for  trial 
before  the  court  of  the  United  States  or  the  territorial 
court  having  cognizance  of  the  offense. 

1542.  The  circuit  courts  of  the  United  States  and  theerC°mmi88ion- 
district  courts  of  the  Territories,  from  time  to  time,  shall  13^8pr^  9^18646'  c- 
increase  the  number  of  commissioners:  so  as  to  afford  a  2s';  May  si,  mo,' 

«         ,  ,  .          c.  114,  s.  9,  v.  16, 

speedy  and  convenient  means  for  the  arrest  and  examma-  P.  142. 
tion  of  persons  charged  with  the  crimes  referred  to  in  the. 
preceding  section  ;  and  such  commissioners  are  authorized 
and  required  to  exercise  all  the  powers  and  duties  con- 
ferred on  them  herein  with  regard  to  such  offenses  in  like 
manner  as  they  are  authorized  by  law  to  exercise  with  re- 
gard to  other  offenses  against  the  laws  of  the  United  States. 

1543.  The  commissioners  authorized  to  be  appointed  by    TheY  may  «P- 

*  point  persona  to 

the  preceding  section  are  empowered,  within  their  respec-  execute  war- 


tive  counties,  to  appoint,  in  writing,  under  their  hands, 

one  or  more  suitable  persons,  from  time  to  time,  who  shall  2s';  May  Hi,  im, 

execute  all  such  warrants  or  other  process  as  the  commis-p.iif.8'  10>  v'16' 

sioners  may  issue  in  the  lawful  performance  of  their  duties,    Sec'  1984>  B's" 

and  the  persons  so  appointed  shall  have  authority  to  sum- 

mon and  call  to  their  aid  the  bystanders  or  posse  comitatus 

of  the  proper  county,  or  such  portion  of  the  land  or  naval 

forces  of  the  United  States,  or  of  the  militia,  as  may  be 

necessary  to  the  performance  of  the  duty  with  which  they 

are  charged  ;  and  such  warrants  shall  run  and  be  executed 

anywhere  in  the  State  or  Territory  within  which  they  are 

issued. 

1544.  Every  marshal  and  deputy  marshal  shall  obey  and 
execute  all  warrants  or  other  process,  when  directed  toetc- 

him,  issued  under  the  provisions  hereof.  sifiTi.!,'  p. 

28;  May  31,  1870,  c.  114,  s.  10,  v.  16,  p.  142.     Sec.  1985,  B.S. 

1545.  The  district  attorneys,  marshals,  their  deputies,  atSjfeyfetctriot 
and  the  clerks  of  the  courts  of  the  United  States  and  ter-  01APr-  V866<  °- 

31,s.7,v.  14,  p.  29; 

ritorial  courts  shall  be  paid  for  their  services,  in  cases  May  31,  ISTI,  c. 
under  the  foregoing  provisions,  the  same  fees  as  are  allowed  143'. 
to  them  for  like  services  in  other  cases  ;  and  where  the  pro- 
ceedings are  before  a  commissioner  he  shall  be  entitled  to 
a  fee  of  ten  dollars  for  his  services  in  each  case,  inclusive 
of  all  services  incident  to  the  arrest  and  examination. 

1546.  Every  per  son  appointed  to  execute  process  under  po°n?t^rst0(n9e|P; 
section  nineteen  hundred  and  eighty-four  [Eev.  Stat.]  l 

be  entitled  to  a  fee  of  five  dollars  for  each  party  he 


arrest  and  take  before  any  commissioner,  with  such  other  ii4,s.  12,  v.  ie,  p. 

143. 

—     Sec.  1987,  B.8. 
1  Paragraph  1543,  ante. 


584  THE    MILITARY   LAWS   OF    THE   UNITED    STATES. 

fees  as  may  be  deemed  reasonable  by  the  commissioner  for 
any  additional  services  necessarily  performed  by  him,  such 
as  attending  at  the  examination,  keeping  the  prisoner  in 
custody,  and  providing  him  with  food  and  lodging  during 
his  detention,  and  until  the  final  determination  of  the  com- 
missioner; such  fees  to  be  made  up  in  conformity  with  the 
fees  usually  charged  by  the  officers  of  the  courts  of  justice 
within  the  proper  district  or  county,  as  near  as  may  be 
practicable,  and  jtaid  out  of  the  Treasury  of  the  United 
States  on  the  certificate  of  the  judge  of  the  district  within 
which  the  arrest  is  made,  and  to  be  recoverable  from  the 
defendant  as  part  of  the  judgment  in  case  of  conviction. 

Speedy  trial.  ^  1547.  Whenever  the  President  has  reason  to  believe  that 
si,  sp8,V.'i4,  p.V.  offenses  have  been,  or  are  likely  to  be  committed  against  the 
*  provisions  of  chapter  seven  of  the  Title  CRIMES,  within 
any  judicial  district,  it  shall  be  lawful  for  him,  in  his  discre- 
tion, to  direct  the  judge,  marshal,  and  district  attorney  of 
such  district  to  attend  at  such  place  within  the  district, 
and  for  such  time  as  he  may  designate,  for  the  purpose  of 
the  more  speedy  arrest  and  trial  of  persons  so  charged, 
and  it  shall  be  the  duty  of  every  judge  or  other  officer, 
when  any  such  requisition  is  received  by  him  to  attend  at 
the  place  and  for  the  time  therein  designated. 

Aid  of  themiii-     1548.  It  shall  be  lawful  for  the  President  of  the  United 

tary   and    naval 

forces.  States,  or  such  person  as  he  may  empower  for  that  pur- 

3i,s?9,V.i4,p.29ipose,  to  employ  such  part  of  the  land  or  naval  forces  of 
nJfs.  is,  v.  i6,  p!  the  United  States,  or  of  the  militia,  as  may  be  necessary  to 
34s'ec.i989,R.s.  aid  in  the  execution  of  judicial  process  issued  under  any  of 
the  preceding  provisions,  or  as  shall  be  necessary  to  prevent 
the  violation  and  enforce  the  due  execution  of  the  provi- 
sions of  this  Title. 

Peonage  aboi-     1549.  The  holding  of  any  person  to  service  or  labor  under 
18Mar.  2, 1867,  c.  the  system  known  as  peonage  is  abolished  and  forever  pro- 
Lei  8'  p'  hibited  in  the  Territory  of  New  Mexico,  or  in  any  other 
*ec.i990,B.s.  Territory  or  State  of  the  United  States;  and  all  acts,  laws, 

resolutions,  orders,  regulations,  or  usages  of  the  Territory 
of  New  Mexico,  or  of  any  other  Territory  or  State,  which 
have  heretofore  established,  maintained,  or  enforced,  or  by 
virtue  of  which  any  attempt  shall  hereafter  be  made  to 
establish,  maintain,  or  enforce,  directly  or  indirectly,  the 
voluntary  or  involuntary  service  or  labor  of  any  persons  as 
peons,  in  liquidation  of  any  debt  or  obligation,  or  other- 
wise, are  declared  null  and  void. 

Foregoing  sec-     1550.  Every  per  son  in  the  military  or  civil  service  in  the 
for°ced.  °       l"  Territory  of  New  Mexico  shall  aid  in  the  enforcement  of 
iSe'.  the  preceding  section. 

bee.  1991,  U.S. 


THE   MILITARY   LAWS   OF  THE  UNITED   STATES.  585 


THE  ELECTIVE   FRANCHISE. 

1551.  No  officer  of  the  Army  or  Navy  of  the  United 
States  shall  prescribe  or  fix,  or  attempt  to  prescribe  or  fix, 

by  proclamation,  order,  or  otherwise,  the  qualifications  25 1865  c 

voters  in  any  State,  or  in  any  manner  interfere  with  the  ^  a.  i,  v.  13,  P. 
freedom  of  any  election  in  any  State,  or  with  the  exercise  sec.  2003,  R.S. 
of  the  free  right  of  suffrage  in  any  State. 

1552.  All  citizens  of  the  United  States  who  are  other-    Race  color  or 

previous     couch 

wise  qualified  by  law  to  vote  at  any  election  by  the  people  tion  not  to  affect 

*•  the  right  to  vote. 

in  any  State,  Territory,  district,  county,  city,  parish,  town-    May  si,  ISTO,  c. 
ship,  school  district,  municipality,  or  other  territorial  sub-  HO.'  8< 
division,  shall  be  entitled  and  allowed  to  vote  at  all  such 
elections,  without  distinction  of  race,  color,  or  previous  con- 
dition of  servitude ;  any  constitution,  law.  custom,  usage,  or 
regulation  of  any  State  or  Territory,  or  by  or  under  its 
authority,  to  the  contrary  notwithstanding.1 


THE   PUBLIC   HEALTH. 

1553.  The  quarantines  and  other  restraints  established    Quarantine. 
by  the  health-laws  of  any  State,  respecting  any  vessels  laws  to  be  ob- 

•    •  u          *    4.  j-   4.    •    ?+i  *      -U    T,  served  by  United 

arriving  in,  or  bound  to,  any  port  or  district  thereof,  shall  states  officers, 
be  duly  observed  by  the  officers  of  the  customs  revenue  of6  Feb.  23,1799,0. 
the  United  States,  by  the  masters  and  crews  of  the  several 
revenue-cutters,  and  by  the  military  officers  commanding 
in  any  fort  or  station  upon  the  sea-coast ;  and  all  such  offi- 
cers of  the  United  States  shall  faithfuily  aid  in  the  exe- 
cution of  such  quarantines  and  health-laws,  according  to 
their  respective  powers  and  within  their  respective  pre- 
cincts, and  as  they  shall  be  directed,  from  time  to  time,  by 
the  Secretary  of  the  Treasury.  But  nothing  in  this  Title 
shall  enable  any  State  to  collect  a  duty  of  tonnage  or 
impost  without  the  consent  of  Congress.2 


THE  PUBLIC  LANDS. 

1554.  The  President  is  authorized  to  employ  so  much  of  The  public 
the  land  and  naval  forces  of  the  United  States  as  may  be  timber',  unlawful 
necessary  effectually  to  prevent  the  felling,  cutting  down,  in|ec!2460,R.s. 
or  other  destruction  of  the  timber  of  the  United  States  in  islTv.^sf pb322.' 
Florida,  and  to  prevent  the  transportation  or  carrying 

'Sections  2002  and  2005-2031,  inclusive,  of  the  lievised  Statutes,  were  repealed  by 
the  act  of  February  8, 1894  (28  Stat.  L.,  36).  2  Abb.  U.  S.,  120;  McKay  v.  Campbell, 
1  Saw.,  374;  U.  S.  v.  Keese  et  al.,  92  U.  S.,  214;  U.  S.  v.  Cruikshank  et  at,  92  T7,  S.,  542. 

2Gibbona  v,  Ogden,  9  Wh.,  1;  Paaaenger  Cases,  7  How,,  406. 


586  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

away  any  such  timber  as  may  be  already  felled  or  cut 
down  ;  and  to  take  such  other  and  further  measures  as  may 
be  deemed  advisable  for  the  preservation  of  the  timber  of 
the  United  States  in  Florida.  (  Sec.  2460,  Rev.  Stat.  )  That 
the  President  is  hereby  authorized  to  take  such  measures 
as  shall  be  necessary  to  remove  and  destroy  any  unlawful 
inclosures  of  any  of  said  lands,  and  to  employ  civil  or  mili- 
tary force  as  may  be  necessary  for  that  purpose.1  Sec.  5, 
act  of  February  25,  1885  (23  Stat.  L.,  322}. 
Removal  of  1555.  That  if  any  person  or  persons  shall,  after  the  pass- 


2  M445  3>  *n£  °^  ^n*s  ac^>  ^a^e  P°ssessi°n  °f»  or  m&ke  a  settlement  on 
any  lands  ceded  or  secured  to  the  United  States,  by  any 
treaty  made  with  a  foreign  nation,  or  by  a  cession  from 
any  State  to  the  United  States,  which  lands  shall  not  have 
been  previously  sold,  ceded,  or  leased  by  the  United  States, 
or  the  claim  to  which  lands,  by  such  person  or  persons, 
shall  not  have  been  previously  recognized  and  confirmed 
by  the  United  States;  or  if  any  person  or  persons  shall 
cause  such  lands  to  be  thus  occupied,  taken  possession  of, 
or  settled  ;  or  shall  survey,  or  attempt  to  survey,  or  cause 
to  be  surveyed,  any  such  lands  ;  or  designate  any  bound- 
aries thereon,  by  marking  trees,  or  otherwise,  until  thereto 
duly  authorized  bylaw;  such  offender  or  offenders,  shall 
forfeit  all  his  or  their  right,  title,  and  claim,  if  any  he  hath, 
or  they  have,  of  whatsoever  nature  or  kind  the  same  shall 
or  may  be,  to  the  lands  aforesaid,  which  he  or  they  shall 
have  taken  possession  of,  or  settled,  or  cause  to  be  occu- 
pied, taken  possession  of,  or  settled,  or  which  he  or  they 
shall  have  surveyed,  or  attempt  to  survey,  or  cause  to  be 
surveyed,  or  the  boundaries  thereof  he  or  they  shall  have 
designated,  or  cause  to  be  designated,  by  marking  trees  or 
otherwise.  And  it  shall  moreover  be  lawful  for  the  Presi- 
dent of  the  United  States,  to  direct  the  marshal,  or  officer 
acting  as  marshal,  in  the  manner  hereinafter  directed,  and 
also  to  take  such  other  measures,  and  to  employ  such  mili- 
tary force  as  he  may  judge  necessary  and  proper,  to  remove 
from  lands  ceded,  or  secured  to  the  United  States,  by  treaty, 
or  cession  as  aforesaid,  any  person  or  persons  who  shall 
hereafter  take  possession  of  the  same,  or  make,  or  attempt 
to  make  a  settlement  thereon,  until  thereunto  authorized 
by  law.  *  *  *  Sec.  1,  act  of  March  3,  1807  (2  Stat.  L., 
445). 

1  This  statute  appears  as  section  5  of  the  act  of  February  25,  1885  (23  Stat.  L.,  322), 
entitled  "An  act  to  prevent  unlawful  occupancy  of  the  public  lands." 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  587 


OBSTRUCTING  THE  MAILS. 

1556.  Any  person  who  shall  knowingly  and  willfully  ob-    obstructing 

_   ,  .  .   ,  ,  0.,  the  mail;  penal- 

struct  or  retard  the  passage  of  the  mail,  or  any  carriage?  ty. 

,    .  .  ,  ,  June  8,  1872,  c. 

horse,  driver,  or  carrier  carrying  the  same,  shall,  for  every  335,  s.  24i,v.  17,  P. 
such  offense,  be  punishable  by  a  fine  of  not  more  than  one  31|'ec.  3995,  B.S. 
hundred  dollars.1 

CONTRACTS  AND  COMBINATIONS  IN  RESTRAINT  OF  TRADE. 

1557.  Every  contract,  combination  in  the  form  of  trust    Trusts,  etc.,  in 

the  States,  in  re- 

or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com-  straint  of  trade, 
merce  among  the  several  States,  or  with  foreign  nations,  is6  Persons  \  com- 


hereby  declared  to  be  illegal.     Every  person  who 

make  any  such  contract  or  engage  in  any  such  combination  26fp!209.189°'  v' 

or  conspiracy,  shall  be  deemed  guilty  of  a  misdemeanor, 

and,  on  conviction  thereof,  shall  be  punished  by  fine  not    Penalty. 

exceeding  five  thousand  dollars,  or  by  imprisonment  not 

exceeding  one  year,  or  by  both  said  punishments,  in  the 

discretion  of  the  court. 

SEC.  2.  Every  person  who  shall  monopolize,  or  attempt    Persons  at- 

x     tempting  to  mo- 

to  monopolize,  or  combine  or  conspire  with  any  other  person  nopoiize,  etc., 

,.  _  ,  ,  guilty  of  misde- 

or  persons,  to  monopolize  any  part  of  the  trade  or  com-  meanor. 
merce  among  the  several  States,  or  with  foreign  nations, 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  convic- 
tion thereof,  shall  be  punished  by  fine  not  exceeding  five    Penalty. 
thousand  dollars,  or  by  imprisonment  not  exceeding  one 
year,  or  by  both  said  punishments,  in  the  discretion  of  the 
court. 

SEC.  3.  Every  contract,  combination  in  form  of  trust  or    Trusts,  etc.,  in 

7.  ,  Territories  or 

otherwise,  or  conspiracy,  in  restraint  of  trade  or  commerce  District  of  GO- 

in  any  Territory  of  the  United  States  or  of  the  District  of  lui 

Columbia,  or  in  restraint  of  trade  or  commerce  between  any 

such  Territory  and  another,  or  between  any  such  Territory 

or  Territories  and  any  State  or  States  or  the  District  of 

Columbia,  or  with  foreign  nations,  or  between  the  District 

of  Columbia  and  any  State  or  States  or  foreign  nations,  is 

hereby  declared  illegal.    Every  person  who  shall  make  any    persons  en- 

such  contract  or  engage  in  any  such  combination  or  con-fufity  of 

spiracy,  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  meanor- 

conviction  thereof,  shall  be  punished  by  fine  not  exceeding 

five  thousand  dollars,  or  by  imprisonment  not  exceeding    Penalty. 

1  The  entire  strength  of  the  nation  may  be  used  to  enforce,  in  any  part  of  the  land, 
the  full  and  free  exercise  of  all  national  powers  and  the  security  of  all  rights  in- 
trusted by  the  Constitution  to  its  care.  The  strong  arm  of  the  National  Govern- 
ment may  be  put  forth  to  brush  away  all  obstructions  to  the  freedom  of  interstate 
commerce  or  the  transportation  of  the  mails.  If  the  emergency  arise,  the  Army  of 
the  nation  and  all  its  militia  are  at  the  service  of  the  nation  to  compel  obedience  to 
its  laws.  (In  re  Debs,  158  U.  S.,  564,  582;  InreNeagle,  135  U,  S..  1  ;  Ex  parte  Siebold, 
100  TJ.  S.,  371,  395  ;  U.  S.  v.  Kirby,  7  Wall.,  482.  ) 


588 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


Process. 


one  year,  or  by  both  said  punishments,  in  the  discretion  of 
the  court, 
jurisdiction  of     SEC.  4.  The  several  circuit  courts  of  the  United  States 

United    States  ,        .  ,     ._ 

circuit  courts,     are  hereby  invested  with  jurisdiction  to  prevent  and  re- 
office°r8.ecl      lg  strain  violations  of  this  act;  and  it  shall  be  the  duty  of  the 
several  district  attorneys  of  the  United  States,  in  their 
respective  districts,  under  the  direction  of  the  Attorney- 
General,  to  institute  proceedings  in  equity  to  prevent  and 
Procedure.      restrain  such  violations.     Such  proceedings  may  be  by  way 
of  petition  setting  forth  the  case  and  praying  that  such 
violation  shall  be  enjoined  or  otherwise  prohibited.     When 
the  parties  complained  of  shall  have  been  duly  notified  of 
such  petition  the  court  shall  proceed,  as  soon  as  may  be,  to 
Hearing,  etc.    the  hearing  and  determination  of  the  case;  and  pending 
such  petition  and  before  final  decree,  the  court  may  at  any 
Temporary  re-  time  make  such  temporary  restraining  order  or  prohibition 

straining    order,  ,      ,,  ,         ,  _   .       t    .       J. 

etc.  as  shall  be  deemed  just  in  the  premises. 

SEC.  5.  Whenever  it  shall  appear  to  the  court  before 
which  any  proceeding  under  section  four  of  this  act  may 
be  pending,  that  the  ends  of  justice  require  that  other 
parties  should  be  brought  before  the  court,  the  court  may 
cause  them  to  be  summoned,  whether  they  reside  in  the 
district  in  which  the  court  is  held  or  not;  and  subposnas 
to  that  end  may  be  served  in  any  district  by  the  marshal 
thereof. 

SEC.  6.  Any  property  owned  under  any  contract  or  by 
any  combination,  or  pursuant  to  any  conspiracy  (and  being 
the  subject  thereof)  mentioned  in  section  one  of  this  act, 
and  being  in  the  course  of  transportation  from  one  State 
*°  another,  or  to  a  foreign  country,  shall  be  forfeited  to  the 
United  States,  and  may  be  seized  and  condemned  by  like 
proceedings  as  those  provided  by  law  for  the  forfeiture, 
seizure,  and  condemnation  of  property  imported  into  the 
United  States  contrary  to  law. 

SEC.  7.  Any  person  who  shall  be  injured  in  his  business 
or  property  by  any  other  person  or  corporation  by  reason 
of  anything  forbidden  or  declared  to  be  unlawful  by  this 
act,  may  sue  therefor  in  any  circuit  court  of  the  United 
States  in  the  district  in  which  the  defendant  resides  or 
is  found,  without  respect  to  the  amount  in  controversy, 
and  shall  recover  three  fold  the  damages  by  him  sus- 
tained, and  the  costs  of  suit,  including  a  reasonable 
attorney's  fee. 

SEC.  8.  That  the  word  "person,"  or  u persons,"  wherever 
used  in  this  act  shall  be  deemed  to  include  corporations 
and  associations  existing  under  or  authorized  by  the  laws 


Trust,  etc., 
property  in  tran- 
sit. 


Forfeiture, 
seizure,  and  con- 
demnation. 


Damages. 


Litigation. 


Recovery. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      589 

of  either  the  United  States,  the  laws  of  any  of  the  Territo- 
ries, the  laws  of  any  State,  or  the  laws  of  any  foreign  coun- 
try. Act  of  July  2,  1890  (26  Stat.  L.,  209). 

NORTHERN  PACIFIC  RAILROAD. 

1558.  That  said  Northern  Pacific  Railroad,  or  any  part    Northern  Pa- 

*•*  cific  Railroad. 

thereof,  shall  be  a  post  route  and  a  military  road,  subject  July  2,  ISM,  ». 
to  the  use  of  the  United  States,  for  postal,  military,  naval, 
and  all  other  government  service,  and  also  subject  to  such 
regulations  as  Congress  may  impose  restricting  the  charges 
for  such  government  transportation.  Sec.  11,  act  of  July  2, 
1864  (13  Stat  L,,  370). 

THE  UNION   AND   CENTRAL  PACIFIC  RAILROADS. 

1559.  That  the  grants  aforesaid  are  made  upon  condition    The  union  and 

,.  .,  .....  ...    ,          ,  ,  Central     Pacific 

that  said  company  shall  pay  said  bonds  at  maturity,  and  railroads. 
shall  keep  said  railroad  and  telegraph  line  in  repair  and  1862,  v. is, p. ire. 
use,  and  shall  at  all  times  transmit  dispatches  over  said 
telegraph  line,  and  transport  mails,  troops,  and  munitions 
of  war,  supplies,  and  public  stores  upon  said  railroad  for 
the  government,  whenever  required  to  do  so  by  any  depart- 
ment thereof,  and  that  the  government  shall  at  all  times 
have  the  preference  in  the  use  of  the  same  for  all  the  pur- 
poses aforesaid.     Sec,  6,  act  of  July  11, 1862  (12  Stat.  L.,  493). 

THE   ATLANTIC  AND   PACIFIC  RAILROAD. 

1560.  That  said  Atlantic  and  Pacific  Railroad,  or  any    The   Atlantic 

?.  and  Pacific  Rail- 
part  thereof,  shall  be  a  post  route  and  military  road,  sub-  road. 

ject  to  the  use  of  the  United  States  for  postal,  military,  isw.viu.p.  297.' 
naval,  and  all  other  government  service,  and  also  subject 
to  such  regulations  as  Congress  may  impose  restricting  the 
charges  for  such  government  transportation.     Sec.  11,  act  of 
July  27,  1866  (14  Stat.  L.,  297). 

1561.  That  the  Southern  Pacific  Railroad,  a  company 
incorporated  under  the  laws  of  the  State  of  California,  is     gv 
hereby  authorized  to  connect  with  the  said  Atlantic  and 
Pacific  Railroad,  formed  under  this  act,  at  such  point  near 

the  boundary  line  of  the  State  of  California,  as  they  shall 
deem  most  suitable  for  a  railroad  line  to  San  Francisco, 
and  shall  have  a  uniform  gauge  and  rate  of  freight  or  fare 
with  said  road  5  and  in  consideration  thereof,  to  aid  in  its 
construction,  shall  have  similar  grants  of  land,  subject  to 
all  the  conditions  and  limitations  herein  provided,  and 
shall  be  required  to  construct  its  road  on  the  like  regula- 
tions, as  to  time  and  manner,  with  the  Atlantic  and  Pacific 
Railroad  herein  provided  for.  Sec.  18,  act  of  July  27, 1866 
(14  Stat.  L.,  299). 


590  THE   MILITARY  LAWS   OF   THE   UNITED    STATES. 

RESTRICTION  UPON  THE  USE   OF  MILITARY  FORCE. 

Army  not  tobe     1562.  From  and  after  the  passage  of  this  act  it  shall  not 
comitatus.         be  lawful  to  employ  any  part  of  the  Army  of  the  United 

Sec.l5,Junel8,  .       *_ 

1878,  v.  20,  p.  152.  States,  as  a  posse  comitatus,  or  otherwise,  for  the  purpose 
of  executing  the  laws,  except  in  such  cases  and  under  such 
circumstances  as  such  employment  of  said  force  may  be 
expressly  authorized  by  the  Constitution  or  by  act  of  Con- 
gress; and  no  money  appropriated  by  this  act  shall  be 
used  to  pay  any  of  the  expenses  incurred  in  the  employ- 
ment of  any  troops  in  violation  of  this  section.1  Sec.  15, 
act  of  June  18,  1878  (20  Stat.  L.,  152). 

llt  is  provided  in  section  15  of  the  act  of  June  18, 1878,  chapter  263,  that  "  From 
and  after  the  passage  of  this  act  it  shall  not  be  lawful  to  employ  any  part  of  the 
Army  of  the  United  States,  as  a  posse  comitatus,  or  otherwise,  for  the  purpose  ot 
executing  the  laws,  except  in  such  cases  and  under  such  circumstances  as  such 
employment  of  said  force  may  be  expressly  authorized  by  the  Constitution  or  by  act 
of  Congress."  In  view  of  this  legislation,  held  as  follows : 

That  inasmuch  as  it  was  not  expressly  authorized  by  any  act  of  Congress  that 
United  Stsites  marshals  should  be  empowered  to  summon  the  military  to  serve  on  a 
posse  comitatus  (but  this  was  authorized  only  indirectly  and  impliedly  by  the  pro- 
vision of  the  act  of  September  24, 1789,  incorporated  in  section  787  of  the  Revised 
Statutes),  (a)  the  Army  could  not,  under  the  existing  law,  legally  act  on  the  posse  com- 
itatus of  a  marshal  or  deputy  marshal  of  the  United  States  (b)  (Dig.  Opin.  J.  A. 
Gen.,  162,  par.  6.) 

That  in  the  absence  of  such  an  ' '  unlawful  combination  'as  is  contemplated  by 
section  5298,  Revised  Statutes,  the  President  would  not  be  authorized  to  employ  a 
military  force  to  assist  inspectors  of  customs  in  seizing  smuggled  property  or  arrest- 
ing persons  concerned  in  violations  of  the  revenue  laws,  such  an  employment  not 
being  expressly  authorized  by  any  statute. 

That  whenever  a  marshal  or  deputy  marshal  was  prevented  from  making  due  serv- 
ice of  judicial  process,  for  the  arrest  of  persons  or  otherwise,  by  the  forcible  resist- 
ance or  oppositionof  an  unlawful  combination  or  assemblage  of  persons,  the  President 
was  expressly  authorized  by  section  5298,  Revised  Statutes,  to  employ  such  part  of 
the  Army  as  he  might  deem  necessary  to  secure  the  due  service  of  such  process  and 
execute  the  laws;  first,  however,  in  any  such  case  (as  in  any  case  arising  under  sec- 
tions 5297  and  5299),  making  proclamation  as  required  by  section  5300. 

That,  notwithstanding  the  legislation  of  June  18, 1878,  the  President  was  author- 
ized to  employ  the  military  to  arrest  and  prevent  persons  engaging  in  introducing 
liquor  into  the  Indian  country  contrary  to  law,  as  also  to  arrest  persons  being  other- 
wise in  the  Indian  country  i'n  violation  of  law,  (c)  or  to  make  the  arrest  therein  of 
Indians  charged  with  the  commission  of  crime,  such  employment  being  expressly 
authorized  by  sections  2150  and  2152,  Revised  Statutes. 

That  the  President  was  authorized  by  section  2150,  Revised  Statutes,  to  remove 
by  military  force,  after  a  reasonable  notice  to  quit,  certain  persons  commorant  upon 
an  Indian  reservation  contrary  to  the  terms  of  a  treaty  between  the  United  States 
and  the  tribe  occupying  the  reservation,  and  who  therefore  were  there  "in  violation 
of  law  "  in  the  sense  of  that  section,  (d) 

That  the  provision  of  June  18,  1878,  was  not  to  be  construed  as  interfering  with 
the  authority  and  duty  of  the  President  to  employ  a  necessary  military  force  for  the 
removal  of  trespassers  from  a  military  reservation,  such  employment  not  being, 
properly  speaking,  "for  the  purpose  of  executing  the  laws,"  but  a  mere  protecting, 
by  the  executive  department,  of  public  property  in  its  military  charge. (e)  (Dig. 
Opin.  J.  A.  Gen.,  162,  par.  6.) 

In  the  absence  of  any  express  provision  contained  in  the  acts  authorizing  the 
President  to  make  reservations  of  forest  lands  (acts  of  September  25  and  October  1, 

a  6  Opin.  Att.  Gen.,  471;  letter  of  Attorney-General  Evarts  to  the  United  States 
marshal  for  the  northern  district  of  Florida,  Attorney-General's  Office,  August  20, 
1868 ;  general  instructions  to  United  States  marshals  from  Attorney-General  Taft, 
published  in  General  Orders  96,  Headquarters  of  Army,  1876;  also  opinion  cited  in 
next  note. 

b  See,  to  a  similar  effect,  opinion  of  the  Attorney-General  of  October  10,1878  (16 
Opin.,  162) ;  also  19  Opin.,  293. 

cBut  note  that,  in  view  of  the  provisions  of  section  2151,  Revised  Statutes,  an  offi- 
cer of  the  Army  who  detains  a  person  arrested  under  section  2150  longer  than  five 
days  before  "conveying  him  to  the  civil  authority,"  or  subjects  him  when  in  arrest 
to  unreasonably  harsh  treatment,  renders  himself  liable  to  an  action  in  damages  for 
false  imprisonment.  (In  re  Carr,  3  Sawyer,  316 ;  Waters  v .  Campbell,  5  ibid.,  17.) 

dSee  14  Opin.  Att.  Gen.,  451 ;  20  ibid.,  245;  and  note  the  proclamation  of  the  Presi- 
dent published  in  General  Orders  16,  Headquarters  of  Army,  1880,  relating  to  the 
intrusion  of  unauthorized  persons  upon  the  "Indian  Territory  "  and  declaring  that 
the  Army  would  be  employed  to  effectuate  their  removal  if  necessary. 

e  "Due  caution  should  be  observed,  however,  that  in  executing  this  duty  there  be 
no  unnecessary  or  wanton  harm  done  to  persons  or  property. "  (Opin.  Att.  Gen. ,  476. ) 


THE   MILITARY   LAWS   OF  THE   UNITED   STATES. 


591 


NEUTRALITY.1 


Par. 

1563.  Accepting  a  foreign  commis- 

sion. 

1564.  Enlisting  in    foreign  serv- 

ice. 

1565.  Arming  vessels  against  peo- 

ple    at    peace    with    the 
United  States. 

1566.  Arming    vessels    to   cruise 

against    citizens    of    the 
United  States. 

1567.  Augmenting  force  of  foreign 

vessel  of  war. 


Par. 

1568.  Military  expeditions  against 

people  at  peace  with  the 
United  States. 

1569.  Enforcement    of    foregoing 

provisions. 

1570.  Compelling  foreign  vessels  to 

depart. 

1571.  Armed  vessels  to  give  bond 

on  clearance. 

1572.  Detention  by  collectors  of 

customs. 

1573.  Construction  of  this  title. 


eign  commission 


1563.  Every  citizen  of  the  United  States  who.  within 

,,                  .,                     .       .     ,.    ,                                                                ,  . 

the  territory  or  jurisdiction  thereof,  accepts  and  exercises  Apr.  20,  i8is,c. 

a  commission  to  serve  a  foreign  prince,  state,    colony,  sec.6li8ifB.  s.' 


1890,  and  March  3,  1891,  sec.  24),  by  which  he  is  expressly  empowered  to  use  the 
Army  in  execution  of  such  statutes,  held  that  the  President  would  not  be  author- 
ized to  employ  as  a  posse  comitatus,  or  otherwise,  the  military  forces  to  aid  in  en- 
forcing thv  regulations  established  by  the  Secretary  of  the  Interior  for  the  care  and 
management  of  such  lands.  Such  employment,  if  permitted,  would  render  the 
troops  trespassers  and  liable  to  civil  suits  and  prosecutions.  (Ibid.,  165,  par.  9.) 

USE  OF  FORCE  IN  THE  EXECUTION  OF  THE  LAW. 

The  following  paragraphs  of  the  Army  Eegulations  of  1895  contain  instructions 
as  to  the  manner  in  which  troops  shall  be  employed: 

Officers  of  the  Army  will  not  permit  troops  under  their  command  to  be  used  to  aid 
the  civil  authorities  as  a  posse  comitatus,  or  in  execution  of  the  laws,  except  as 
provided  in  the  foregoing  paragraphs  (paragraphs  1265-1329,  mclusive).  (Par.  485, 
A.  It.,  1895.) 

If  time  will  admit,  applications  for  the  use  of  troops  for  such  purposes  must  be 
forwarded,  with  statements  of  all  material  facts,  for  the  consideration  and  action  of 
the  President;  but  in  case  of  sudden  and  unexpected  invasion,  insurrection,  or  riot, 
endangering  the  public  property  of  the  United  States,  or  in  case  of  attempted  or 
threatened  robbery  or  interruption  of  the  United  States  mails,  or  other  equivalent 
emergency  so  imminent  as  to  render  it  dangerous  to  await  instructions  requested 
through  the  speediest  means  of  communications,  an  officer  of  the  Army  may  take 
such  action  before  the  receipt  of  instructions  as  the  circumstances  of  the  case  and 
the  law  under  which  he  is  acting  may  justify,  and  will  promptly  report  his  action 
and  the  circumstances  requiring  it  to  the  Adjutant-General  of  the  Army  by  tele- 
graph, if  possible,  for  the  information  of  the  President.  (Par.  489,  ibid.) 

In  the  enforcement  of  the  laws  troops  are  employed  as  a  part  of  the  military  power 
of  the  United  States,  and  act  under  the  orders  of  the  President  as  Commander  in 
Chief.  They  can  not  be  directed  to  act  under  the  orders  of  any  civil  officer.  The 
commanding  officers  of  troops  so  employed  are  directly  responsible  to  their  military 
superiors.  Any  unlawful  or  unauthorized  act  on  their  part  would  not  be  excusable 
on  the  ground  of  an  order  or  request  received  by  them  from  a  marshal  or  any  other 
civil  officer.  (Par.  490,  ibid.) 

Troops  called  into  action  against  a  mob  forcibly  resisting  or  obstructing  the  execu- 
tion of  the  laws  of  the  United  States,  or  attempting  to  destroy  property  belonging 
to  or  under  the  protection  of  the  United  States,  are  governed  b'y  the  general  regula- 
tions of  the  Army  and  apply  military  tactics  in  respect  to  the  manner  in  which  they 
shall  act  to  accomplish  the  desired  end.  It  is  purely  a  tactical  question  in  what 
manner  they  shall  use  the  weapons  with  which  they  are  armed— whether  by  fire  of 
musketry  and  artillery  or  by  the  use  of  the  bayonet  and  saber,  or  by  both,  and  at 
what  stage  of  the  operations  each  or  either  mode  of  attack  shall  be  employed.  This 
tactical  question  will  be  decided  by  the  immediate  commander  of  the  troops,  accord- 
ing to  his  judgment  of  the  situation.  The  fire  of  troops  should  be  withheld  until 
timely  warning  has  been  given  to  the  innocent  who  may  be  mingled  with  the  mob. 
Troops  must  never  fire  into  a  crowd  unless  ordered  by  their  commanding  officer, 
except  that  single  selected  sharpshooters  may  shoot  down  individual  rioters  who 


have  fired  upon  or  thrown  missiles  at  the  troops 

alone  should  be  used  against  mixed  crowds  in  the  first  stages  of  a  revolt. 


As  a  general  rule  the  bayonet 
rst  stages  of  a  revolt.    But  as 

soon  as  sufficient  warning  has  been  given  to  enable  the  innocent  to  separate  them- 
selves from  the  guilty,  the  action  of  the  troops  should  be  governed  solely  by  the 
tactical  considerations  involved  in  the  duty  they  are  ordered  to  perform.  They 
should  make  their  blows  so  effective  as  to  promptly  suppress  all  resistance  to  lawful 
authority,  and  should  stqp  the  destruction  of  life  the  moment  lawless  resistance 
has  ceased.  Punishment  belongs  not  to  the  troops,  but  to  the  courts  of  justice. 
(Par.  491,  ibid.) 

JThe  neutrality  act  has  been  uniformly  treated  by  the  Executive  Departments 
and  by  judges  of  the  United  States  courts  as  embracing  warlike  enterprises  set  on 


592  THE  MILITARY   LAWS   OF   THE   UNITED   STATES. 

district,  or  people,  in  war,  by  land  or  by  sea,  against  any 
prince,  state,  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high 
misdemeanor,  and  shall  be  fined  not  more  than  two  thou- 
sand dollars,  and  imprisoned  not  more  than  three  years.1 
fore?H8er?ifein     1564.  Every  person  who,  within  the  territory  or  jurisdic- 
sec.  2,  ibid.,  p.  tion  of  the  United  States,  enlists  or  enters  himself,  or  hires 
s'ec.5282,R.s.  or  retains  another  person  to  enlist  or  enter  himself,  or  to 
go  beyond  the  limits  or  jurisdiction  of  the  United  States 
with  intent  to  be  enlisted  or  entered  in  the  service  of  any 
foreign  prince,  state,  colony,  district,  or  people,  as  a  soldier, 
or  as  a  marine  or  seaman,  on  board  of  any  vessel  of  war, 
letter  of  marque,  or  privateer,  shall  be  deemed  guilty  of 
high  misdemeanor,  and  shall  be  fined  not  more  than  one 
thousand  dollars,  and  imprisoned  not  more  than  three 
years.2 
Armingvesseis     1565.  Every  person  who,  within  the  limits  of  the  United 

against  people  at 

peace  with  the  States,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm, 

United  States. 

Sec.3,i6id.  or  procures  to  be  fitted  out  and  armed,  or  knowingly  is 
'  concerned  in  the  furnishing,  fitting  out,  or  arming,  of  any 
vessel,  with  intent  that  such  vessel  shall  be  employed  in 
the  service  of  any  foreign  prince  or  state,  or  of  any  colony, 
district,  or  people,  to  cruise  or  commit  hostilities  against 
the  subjects,  citizens,  or  property  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  or  who  issues  or  delivers  a 
commission  within  the  territory  or  jurisdiction  of  the  United 
States,  for  any  vessel,  to  the  intent  that  she  may  be  so  em- 
ployed, shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  more  than  ten  thousand  dollars,  and  im- 
prisoned not  more  than  three  years.  And  every  such  ves- 
sel, with  her  tackle,  apparel,  and  furniture,  together  with 
all  materials,  arms,  ammunition,  and  stores,  which  may 
have  been  procured  for  the  building  and  equipment  thereof, 


foot  in  this  country  against  a  friendly  power  at  peace  with  all  the  world.    (U.  S.  v. 
Sullivan,  9  N.  Y  Leg.  Obs..  257.) 

The  organization  in  one  country  or  State  of  combinations  to  aid  or  abet  rebellion 
in  another  or  in  any  other  way  to  act  on  its  political  institutions,  is  a  violation  of 
national  amity  and  comity,  and  an  act  of  semihostile  interference  with  the  affairs 
of  other  peoples.  *  *  *  But  there  is  no  municipal  law  to  forbid  and  punish  such 
combinations,  either  in  the  United  States  or  Great  Britain.  (8  Opin.  Att.  Gen.,  216.) 

1  The  policy  of  this  country  is,  and  ever  has  been,  a  perfect  neutrality  and  non- 
interference in  the  quarrels  of  other  nations.    (3  Opin.  Att.  Gen.,  739.) 

The  act  of  April  30, 1818,  like  that  of  June  5,  1794,  was  intended  to  secure,  beyond 
all  risk  of  violation,  the  neutrality  and  pacific  policy  which  they  consecrate  as  our 
fundamental  law.  (Ibid.,  741.) 

2  The  enlistment  of  seamen  -or  others  for  marine  service  on  Mexican  steamers  in 
New  York,  they  not  being  Mexicans  transiently  within  the  United  States,  is  a  clear 
violation  of  this  section,  and  the  persons  enlisted,  as  well  as  the  officers  enlisting 
them,  are  liable  to  the  penalties  thereby  incurred.    (4  Opin.  Att.  Gen.,  336.) 

This  section  applies  to  foreign  consuls  raising  troops  in  the  United  States  for  the 
military  service  of  Great  Britain.  (7  ibid.,  367.)  It  does  not  apply  to  those  who  go 
abroad  for  foreign  enlistment,  or  to  those  who  transport  such  persons.  (U.  S.  v. 
Kazinski,  2  Sprague,  7.)  The  enlistment  must  be  made  within  the  territory  of  the 
United  States,  and  the  section  does  not  apply  to  one  who  goes  abroad  with  intent 
there  to  enlist.  (Ibid.)  The  words  "soldier'^and  "enlist"  as  used  in  this  section 
are  to  be  understood  in  their  technical  sense,  (Ibid.) 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      593 

shall  be  forfeited;  one-half  to  the  use  of  the  informer,  and 
the  other  half  to  the  use  of  the  United  States.1 

1566.  Every  citizen  of  the  United  States  who,  without .  Arming  vessel 

to  cruise  against 

the  limits  thereof,  fits  out  and  arms,  or  attempts  to  fit  out  citizens  of  the 

United  States. 

and  arm,  or  procures  to  be  fitted  out  and  armed,  or  know-    sec.4,;&*d. 

,    .       _  Sec.  5284,  R.S, 

ingly  aids  or  is  concerned  in  furnishing,  fitting  out,  or 
arming  any  private  vessel  of  war,  or  privateer,  with  intent 
that  such  vessel  shall  be  employed  to  cruise,  or  commit 
hostilities,  upon  the  citizens  of  the  United  States,  or  their 
property,  or  who  takes  the  command  of,  or  enters  on  board 
of  any  such  vessel,  for  such  intent,  or  who  purchases  any 
interest  in  any  such  vessel,  with  a  view  to  share  in  the 
profits  thereof,  shall  be  deemed  guilty  of  a  high  misde- 
meanor, and  fined  not  more  than  ten  thousand  dollars,  and 
imprisoned  not  more  than  ten  years.  And  the  trial  for 
such  offense,  if  committed  without  the  limits  of  the  United 
States,  shall  be  in  the  district  in  which  the  offender  shall 
be  apprehended  or  first  brought. 

1567.  Every  person  who,  within  the  territory  or  jurisdic-    Augmenting 

_*7    .  "  .  force  of   foreign 

tion  of  the  United  States,  increases  or  augments,  or  pro- vessel  of  war. 
cures  to  be  increased  or  augmented,  or  knowingly  is  con-   ! 

i  To  constitute  an  offense  under  this  section,  the  vessel  must  be  fitted  out  and 
armed  with  the  specific  intent.  (U.  S.  v.  Skinner,  1  Brun.  Coll.  Cases.)  It  is  not  nec- 
essary that  the  vessel  should  be  armed  or  manned,  for  the  purpose  of  committing 
hostilities,  before  she  leaves  the  United  States,  if  it  is  the  intention  that  she  shall  be 
so  fitted  subsequently  (The  City  of  Mexico,  28  F.R.,  148),  or  if  the  separate  parts 
of  the  expedition  are  to  be  united  on  the  hieh  seas.  (U.  S.  v.  The  Mary  N.  Hogan,  18 
Fed.  Eep.,  529,  and  20  ibid.,  50.) 

The  status  of  the  insurgent  party  will  be  regarded  by  the  courts  as  it  is  regarded 
by  the  political  or  executive  departments  of  the  United  States  at  the  time  of  the  com- 
mission of  the  alleged  offense.  (Gelston  v.  Hoyt,  3  Wheat.,  246, 324;  U.  S.  v.  Palmer, 
ibid.,  610,  625;  Kennett  v.  Chambers,  14  How.,  38;  Wharton,  Int.  Law  Dig.,  551,  552; 
U.  S. v.  Trumbull,  48  F.  R.,  99, 104.)  The  word  "people,"  as  used  in  this  section,  "is 
one  of  the  denominations  applied  by  the  act  of  Congress  to  a  foreign  power."  (U.  S. 
v.  Quincy,  6  Pet.,  445.) 

I  know  of  no  law  or  regulation  which  forbids  any  person,  or  Government,  whether 
the  political  designation  be  real  or  assumed,  from  purchasing  arms  from  the  citizens  of 
the  United  States  and  shipping  them  at  the  risk  of  the  purchaser.  (10  Opin.  Att. 
Gen.,  452.)  The  sending  of  munitions  of  war  from  a  neutral  country  to  a  belligerent 
port  for  sale,  as  articles  of  commerce,  is  unlawful  only  as  subjecting  such  property  to 
capture.  (The  Santissima  Trinidad,  7  Wheat.,  283 ;  The  City  of  Mexico,  24  F.  R.,  924.) 
It  is  the  right  of  a  belligerent  to  purchase  goods  and  instruments  of  war  in  a  neutral 
nation,  but  it  may  be  denied  by  a  law  passed  for  such  purpose.  (10  Opin.  Att.  Gen.,  61.) 

The  provisions  of  this  section  do  not  apply  to  a  vessel  which  receives  arms  and 
munitions  of  war  in  this  country,  as  cargo  merely,  with  intent  to  carry  them  to  a 
party  of  insurgents  in  a  foreign  country,  but  not  with  the  intent  that  they  shall  con- 
stitute any  part  of  the  fittings  or  furnishings  of  the  vessel  herself.  (U.  S.  v.  The 
Itata,  56 1\  R.,  608 ;  U.  S.  v.  2,000  Cases  of  Rifles,  ibid.)  A  vessel  is  not  liable  to  for- 
feiture under  this  section,  nor  is  she  liable  to  condemnation  as  piratical  on  the 
ground  that  she  is  in  the  employ  of  an  insurgent  party  which  has  not  been  recog- 
nized by  the  United  States  as  having  belligerent  rights.  (U.  S.  v.  The  Itata,  56  F.  R., 
608;  U.'S.  v.  Weed,  5  Wall.,  62;  The  Watchful,  6  Wall.,  91.) 

In  the  case  of  the  Horsa,  decided  on  appeal  in  the  Supreme  Court  of  the  United 
States  on  May  25, 1896,  it  was  held  "that  any  combination  of  men  organized  to  go  to 
Cuba  to  make  war  upon  its  Government,  provided  with  arms  and  ammunition,  con- 
stitutes a  military  expedition.  It  is  not  necessary  that  the  men  shall  be  drilled,  put 
in  uniform,  or  prepared  for  efficient  service,  nor  that  they  shall  have  been  organized 
as  or  according  to  the  tactics  or  rules  which  relate  to  what  is  known  as  infantry, 
cavalry,  or  artillery.  It  is  sufficient  that  they  shall  have  combined  and  organized 
here  to  go  there  and  make  war  on  a  foreign  Government,  and  to  have  provided  them- 
selves with  the  means  of  doing  so.  Whether  such  provision,  as  by  arming,  etc.,  is 
necessary  need  not  be  decided  in  this  case.  Nor  is  it  important  that  they  intended 
to  make  war  as  an  independent  body  or  in  connection  with  others.  Where  men  go 
without  such  combination  and  organization  to  enlist  as  individuals  in  a  foreign 
army,  they  do  not  constitute  such  military  expedition,  and  the  fact  that  the  vessel 
carrying  them  might  carry  arms  as  merchandise  would  not  be  important."  See  also 
The  Estrella,  4  Wh.,  298 ;  The  Gran  Para,  7  Wh.,  471 ;  The  Santa  Maria,  7  Wh.,  490; 
TheMonte  Allegre,  7  Wh.,  520 ;  U.  S.  v.  Reyburn,  6Pet.,  352 ;  U.  S.  v.  Quincy,  6Pet.,  445. 

1919 38 


594      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

cerned  in  increasing  or  augmenting,  the  force  of  any  ship 
of  war,  cruiser,  or  other  armed  vessel,  which,  at  the  time  of 
her  arrival  within  the  United  States,  was  a  ship  of  war, 
or  cruiser,  or  armed  vessel,  in  the  service  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  or 
belonging  to  the  subjects  or  citizens  of  any  such  prince 
or  state,  colony,  district,  or  people,  the  same  being  at  war 
with  any  foreign  prince  or  state,  or  of  any  colony,  district, 
or  people,  with  whom  the  United  States  are  at  peace, 
by  adding  to  the  number  of  the  guns  of  such  vessel,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  cali- 
ber, or  by  adding  thereto  any  equipment  solely  applicable 
to  war,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  more  than  one  thousand  dollars  and  be 
imprisoned  not  more  than  one  year.1 

Military  expe-     1568.  Every  person  who,  within  the  territory  or  juris- 
peopie  at  tJeace  diction  of  the  United  States,  begins,  or  sets  on  foot,  or 

with  the  United  f  ....  > 

states.  provides  or  prepares  the  means  for,  any  military  expedi- 

449.ec'  p'  tion  or  enterprise,  to  be  carried  on  from  thence  against  the 

sec.  6286,  R.S.  ^err^ory  or  dominions  of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,  shall  be  deemed  guilty  of  a  high  mis- 
demeanor, and  shall  be  fined  not  exceeding  three  thousand 
dollars,  and  imprisoned  not  more  than  three  years.2 
Enforcement  1569.  The  district  courts  shall  take  cognizance  of  all 

of  foregoing  pro- 
visions, complaints,  by  whomsoever  instituted,  in  cases  of  captures 

Feb.  is,  1875,  c.  made  within  the  waters  of  the  United  States,  or  within  a 

80,  v.  18,  p.  320.  7. 

Sec.  5287,  R.S.  marine  league  of  the  coasts  or  shores  thereof.  In  every 
case  in  which  a  vessel  is  fitted  out  and  armed,  or  attempted 
to  be  fitted  out  and  armed,  or  in  which  the  force  of  any 
vessel  of  war,  cruiser,  or  other  armed  vessel  is  increased  or 
augmented,  or  in  which  any  military  expedition  or  enter- 
prise is  begun  or  set  on  foot,  contrary  to  the  provisions  and 
prohibitions  of  this  Title;  and  in  every  case  of  the  capture 
of  a  vessel  within  the  jurisdiction  or  protection  of  the 

1  The  repair  of  Mexican  war  steamers  in  the  port  of  New  York,  together  with 
the  augmenting  their  force  by  adding  to  the  number  of  their  guns,  or  by  changing 
those  originally  on  board  for  those  of  larger  caliber,  or  by  the  addition  of  any  equip- 
ment solely  applicable  to  war,  is  a  violation  of  this  section.    But  the  repair  of  their 
bottoms  or  copper,  etc.,  does  not  constitute  any  increase  or  augmentation  of  force 
within  the  meaning  of  the  act,  and  the  steamers  are  not  liable  to  seizure  by  any 
judicial  process  under  it.    (4  Opin.  Att.  Gen.,  336.) 

The  taking  on  of  a  crew  of  American  citizens,  or  of  aliens  domiciled  in  the  United 
States,  would  constitute  a  violation  of  tins  section.    (The  Alerta,  9  Cranch,  359.) 

2  When  a  party  of  insurgents,  already  organized  and  carrying  on  war  against  the 
government  of  a  foreign  country,  send  a  vessel  to  procure  arms  and  ammunition  in 
the  United  States,  the  act  of  purchasing  such  arms  and  ammunition  and  placing 
them  aboard  the  vessel  is  not  within  the  scope  of  this  section  which  prescribes  a 
penalty  for  every  person  who,  within  the  limits  of  the  United  States,  begins  or  sets 
on  foot,  or  prepares  or  provides  the  means  for  any  military  expedition  or  enterprise 
"to  be  carried  on  from  thence."    Such  expeditions  and  enterprises  must  originate 
within  the  jurisdiction  of  the  United  States,  and  the  terms  of  the  statute  do  not 
apply  to  an  expedition  originating  within  the  territory  of  a  foreign  state.     (U.  S.  v. 
Trumbnll,  48  F.  R.,  99.)    For  liability  of  the  officers  of  the  ship,  see  U.  S.  v.  Rand,  37 
ibid,  142.  * 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  595 

United  States  as  before  defined ;  and  in  every  case  in 
which  any  process  issuing  out  of  any  court  of  the  United 
States  is  disobeyed  or  resisted  by  any  person  having  the 
custody  ot  any  vessel  of  war,  cruiser  or  other  armed  vessel 
of  any  foreign  prince  or  state,  or  of  any  colony,  district,  or 
people,  or  of  any  subjects  or  citizens  of  any  foreign  prince 
or  state,  or  of  any  colony,  district,  or  people,  it  shall  be 
lawful  for  the  President,  or  such  other  person  as  he  shall 
have  empowered  for  that  purpose,  to  employ  such  part  of 
the  land  or  naval  forces  of  the  United  States,  or  of  the 
militia  thereof,  for  the  purpose  of  taking  possession  of  and 
detaining  any  such  vessel,  with  her  prizes,  if  any,  in  order 
to  the  execution  of  the  prohibitions  and  penalties  of  this 
Title,  and  to  the  restoring  of  such  prizes  in  the  cases  in 
which  restoration  shall  be  adjudged;  and  also  for  the  pur- 
pose of  preventing  the  carrying  on  of  any  such  expedition 
or  enterprise  from  the  territories  or  jurisdiction  of  the 
United  States  against  the  territories  or  dominions  of  any 
foreign  prince  or  state,  or  of  any  colony,  district,  or  people 
with  whom  the  United  States  are  at  peace. 

1570.  It  shall  be  lawful  for  the  President,  or  such  person  ^P^f^ 
as  he  shall  empower  for  that  purpose,  to  employ  such  part  dejarrt-20 1818  c 
of  the  land  or  naval  forces  of  the  United  States,  or  of  the 88' 8- 9- V ' 
militia  thereof,  as  shall  be  necessary  to  compel  any  foreign 

vessel  to  depart  the  United  States  in  all  cases  in  which,  by 
the  laws  of  nations  or  the  treaties  of  the  United  States, 
she  ought  not  to  remain  within  the  United  States. 

1571.  The  owners  or  consignees  of  every  armed  vessel 

sailing  out  of  the  ports  of  the  United  States,  belonging  cl!ecaioei&i<z. 
wholly  or  in  part  to  citizens  thereof,  shall,  before  clearing    Sec<  6289> K>s> 
out  the  same,  give  bond  to  the  United  States,  with  sufficient 
sureties,  in  double  the  amount  of  the  value  of  the  vessel 
and  cargo  011  board,  including  her  armament,  conditioned 
that  the  vessel  shall  not  be  employed  by  such  owners  to 
cruise  or  commit  hostilities  against  the  subjects,  citizens, 
or  property  of  any  foreign  prince  or  state,  or  of  any  col- 
ony, district,  or  people,  with  whom  the  United  States  are 
at  peace.1 

1572.  The  several  collectors  of  the  customs  shall  detain    Detention  by 

collectors  or  cus- 

any  vessel  manifestly  built  for  warlike  purposes,  and  about  toms. 

to  depart  the  United  States,  the  cargo  of  which  principally  ss.sfii.p.  450.'°* 

.    ,         „  ...  '  „  ,  *,     Sec.  5290,  R.S. 

consists  of  arms  and  munitions  of  war,  when  the  number  of 
men  shipped  on  board,  or  other  circumstances,  render  it 

1  The  law  does  not  prohibit  armed  vessels  belonging  to  citizens  of  the  United 
States  from  sailing  out  of  our  ports;  it  only  requires  the  owners  to  give  security 
that  such  vessels  shall  not  be  employed  by  them  to  commit  hostilities  against  foreign 
powers  at  peace  with  the  United  States.  (U.  S.  v.  Quincy,  5  Pet.,  445.) 


596  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

probable  that  such  vessel  is  intended  to  be  employed  by 
the  owners  to  cruise  or  commit  hostilities  upon  the  sub- 
jects, citizens,  or  property  of  any  foreign  prince  or  state,  or 
of  any  colony,  district,  or  people  with  whom  the  United 
States  are  at  peace,  until  the  decision  of  the  President  is 
had  thereon,  or  until  the  owner  gives  such  bond  and  secur- 
ity as  is  required  of  the  owners  of  armed  vessels  by  the 
preceding  section. 

ofCtM88SeCtion  1573.  The  provisions  of  this  Title  shall  not  be  construed 
v.  3?pp2448,'?5o!" to  extend  to  any  subject  or  citizen  of  any  foreign  prince, 
sec.  6291,  R.S.  state,  colony,  district,  or  people  who  is  transiently  within 
the  United  States,  and  enlists  or  enters  himself  on  board 
of  any  vessel  of  war,  letter  of  marque,  or  privateer,  which 
at  the  time  of  its  arrival  within  the  United  States  was  fitted 
and  equipped  as  such,  or  hires  or  retains  another  subject  or 
citizen  of  the  same  foreign  prince,  state,  colony,  district, 
or  people,  who  is  transiently  within  the  United  States,  to 
enlist  or  enter  himself  to  serve  such  foreign  prince,  state, 
colony,  district,  or  people,  on  board  such  vessel  of  war, 
letter  of  marque,  or  privateer,  if  the  United  States  shall 
then  be  at  peace  with  such  foreign  prince,  state,  colony, 
district,  or  people.  Nor  shall  they  be  construed  to  prevent 
the  prosecution  or  punishment  of  treason,  or  of  any  piracy 
defined  by  the  laws  of  the  United  States. 

EXTRADITION. 

protection   of     1574.  Whenever  any  person  is  delivered  by  any  foreign 

thMarC"!ei869,  c.  government  to  an  agent  of  the  United  States,  for  the  pur- 

i4i,  s.       is,  P.  ^ge  of  being  brought  within  the  United  States  and  tried 

Sec*6276'B's'for  any  crime  of  which  he  is  duly  accused,  the  President 

shall  have  power  to  take  all  necessary  measures  for  the 

transportation  and  safe-keeping  of  such  accused  person, 

and  for  his  security  against  lawless  violence,  until  the  final 

conclusion  of  his  trial  for  the  crimes  or  offenses  specified 

in  the  warrant  ot  extradition,  and  until  his  final  discharge 

from  custody  or  imprisonment  for  or  on  account  of  such 

crimes  or  offenses,  and  for  a  reasonable  time  thereafter, 

and  may  employ  such  portion  of  the  land  or  naval  forces 

of  the  United  States,  or  of  the  militia  thereof,  as  may 

be  necessary  for  the  safe-keeping  and  protection  of  the 

accused. 

nd*     1575.  Any  person  duly  appointed  as  agent  to  receive,  in 
V  behalf  of  the  United  States,  the  delivery,  by  a  foreign 

a    foreign    Gov-  _  .,        .. 

eminent.  government,  of  any  person  accused  of  crime  committed 

sss ec  P' within  the  jurisdiction  of  the  United  States,  and  to  con- 

Sec.6276,R.s.  place  of  his  trial,  shall  have  all  the  powers 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


597 


of  a  marshal  of  the  United  States,  in  the  several  districts 
through  which  it  may  be  necessary  for  him  to  pass  with 
such  prisoner,  so  far  as  such  power  is  requisite  for  the 
prisoner's  safe-keeping. 

1576.  Every   person   who   knowingly  and   willfully  ob-    Penalty  for  op- 
posing agent,  etc. 
structs,  resists,  or  opposes  such  agent  in  the  execution  of  sec.  ;j,  ibid. 

his  duties,  or  who  rescues  or  attempts  to  rescue  such  pris- 
oner, whether  in  the  custody  of  the  agent  or  of  any  officer 
or  person  to  whom  his  custody  has  lawfully  been  com- 
mitted, shall  be  punishable  by  a  fine  of  not  more  than  one 
thousand  dollars,  and  by  imprisonment  for  not  more  than 
one  year. 

(HJANO  ISLANDS. 


Par. 

1577.  Claim  of  United   States  to 

islands. 

1578.  Notice    of     discovery    and 

proofs  to  be  furnished. 

1579.  Completion  of  proof  in  case 

of  death  of  discoverer. 

1580.  Exclusive  privileges  of  dis- 

coverer. 


Par. 

1581.  Restrictions  upon  exporta- 

tion. 

1582.  Regulation  of  guano  trade. 

1583.  Criminal  jurisdiction. 

1584.  Employment    of   land    and 

naval  forces. 

1585.  Right  to  abandon  island. 


1577.  Whenever  any  citizen  of  the  United  States  disco  v-    claim  of  united 

J  States  to  islands. 

ers  a  deposit  of  guano  on  any  island,  rock,  or  key,  notl6^"g-18,i856,c. 
within  the  lawful  jurisdiction  of  any  other  government,  and  us'. s' 

_  _      Sec.  5570,  R.S. 

not  occupied  by  the  citizens  of  any  other  government,  and 
takes  peaceable  possession  thereof,  and  occupies  the  same, 
such  island,  rock,  or  key  may,  at  the  discretion  of  the  Pres- 
ident, be  considered  as  appertaining  to  the  United  States. 

1578.  The  discoverer  shall,  as  soon  as  practicable,  give    Notice  of  dis- 
notice,  verified  by  affidavit,  to  the  Department  of  State,  of  proofeto  be*ftlr, 
such  discovery,  occupation,  and  possession,  describing  the  mlS' 
island,  rock,  or  key,  and  the  latitude  and  longitude  thereof,    Sec'  6571'R'S> 
as  near  as  may  be,  and  showing  that  such  possession  was 

taken  in  the  name  of  the  United  States;  and  shall  furnish 
satisfactory  evidence  to  the  State  Department  that  such 
island,  rock,  or  key  was  not,  at  the  time  of  the  discovery 
thereof,  or  of  the  taking  possession  and  occupation  thereof 
by  the  claimants,  in  the  possession  or  occupation  of  any 
other  government  or  of  the  citizens  of  any  other  govern 
ment,  before  the  same  shall  be  considered  as  appertaining 
to  the  United  States. 

1579.  If  the  discoverer  dies  before  perfecting'  proof  of   completion  of 

proot    m  case  of 

discovery  or  fully  complying  with  the  provisions  of  the  death  of  discov- 
preceding  section,  his  widow  heir,  executor,  or  adminis-  Apr.  2, 1872,  c. 
trator,  shall  be  entitled  to  the  benefits  of  such  discovery,  see. '5572)  it.  s.' 


598  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

upon  complying  with  the  provisions  of  this  Title;  but 
nothing  herein  shall  be  held  to  impair  any  rights  of  discovery 
or  any  assignment  by  a  discoverer  heretofore  recognized 
by  the  United  States. 

Exclusive priv-  1580.  The  discoverer,  or  his  assigns,  being  citizens  of 
erer.  the  United  States,  may  be  allowed,  at  the  pleasure  of  Oon- 

Aug.  18, 1856,  c. 

iG4,  H.  2,  v.  11,  p.  gress,  the  exclusive  right  ot  occupying  such  island,  rocks, 
sec.  5573,  R.  s.  or  keys,  for  the  purpose  of  obtaining  guano,  *  *  *  arid 
may  be  allowed  to  charge  and  receive  for  every  ton  thereof 
delivered  alongside  a  vessel,  in  proper  tubs,  within  reach  of 
ship's  tackle,  a  sum  not  exceeding  eight  dollars  per  ton  for 
the  best  quality,  or  four  dollars  for  every  ton  taken  while 
in  its  native  place  of  deposit. 

1581>  ^°  guano  8na11  be  taken  from  any  such  island, 
rock> or  ke5r>  excePt  for  tne  use  of  tne  citizens  of  the  United 
298Usly32V8i46'c'  States  or  of  persons,  resident  therein.  The  discoverer,  or 
328';  Apr.  2, 1872,  his  widow,  heir,  executor,  administrator,  or  assigns,  shall 

c.  81,  s.l,  v.  17,  p. 

48.  enter  into  bond,  in  such  penalty  and  with  such  sureties  as 

'  may  be  required  by  the  President,  to  deliver  the  guano  to 
citizens  of  the  United  States,  for  the  purpose  of  being  used 
therein,,  and  to  none  others,  and  at  the  price  prescribed, 
and  to  provide  all  necessary  facilities  for  that  purpose 
within  a  time  to  be  fixed  in  the  bond ;  *  *  *  This  sec- 
tion shall,  however,  be  suspended  in  relation  to  all  persons 
who  have  complied  with  the  provisions  of  this  Title,  for  five 
years  from  and  after  the  fourteenth  day  of  July,  eighteen 
hundred  and  seventy-two.1 
Regulation  of  1582.  The  introduction  of  guano  from  such  islands,  rocks. 

guano  trade.  * 

Aug.  is,  1856,  c.  or  keys,  shall  be  regulated  as  in  the  coasting-trade  between 
120! 8'  lP' different  parts  of  the  United  States,  and  the  same  laws 

Sec.  5675.  R.S.     ,      ,, 

snail  govern  the  vessels  concerned  therein. 

criminal  juris-     1583.  All  acts  done,  and  offenses  or  crimes  committed, 

SeoXttM.  on  any  such  island,  rock,  or  key,  by  persons  who  may  land 
s'  thereon,  or  in  the  waters  adjacent  thereto,  shall  be  deemed 
committed  on  the  high  seas,  on  board  a  merchant-ship  or 
vessel  belonging  to  the  United  States ;  and  shall  be  pun- 
ished according  to  the  laws  of  the  United  States  relating 
to  such  ships  or  vessels  and  offenses  on  the  high  seas, 
which  laws  for  the  purpose  aforesaid  are  extended  over 
such  islands,  rocks,  and  keys. 

Empioymentof  1584.  The  President  is  authorized,  at  his  discretion,  to 
forces.  employ  the  land  and  naval  forces  of  the  United  States  to 

seci  5577,  R.S.  protect  the  rights  of  the  discoverer  or  of  his  widow,  heir, 
executor,  administrator,  or  assigns. 

1  This  section  was  suspended  for  five  years  by  the  act  of  March  15,  1878  (20  Stat.  L., 
30),  and  for  a  further  period  of  five  years  by  the  act  of  April  14, 1884  (23  Stat.  L.,  11). 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  599 


1585.  Nothing  iii  this  Title  contained  shall  be  construed  ,  R1ght  *®  aban- 

don  inlands. 

as  obliging  the  United  States  to  retain  possession  of  the   |ec.  £5^-B  g 
islands,  rocks,  or  keys,  after  the  guano  shall  have  been 
removed  from  the  same. 

TREASON. 

1586.  Every  person  owing  allegiance  to  the  United  States    Jjff^'im  c 
who  levies  war  against  them,  or  adheres  to  their  enemies,  ^J1'^1'^1^5 
giving  them  aid  and  comfort  within  the  United  States  or  145,  v.  is,  pp.  479J 
elsewhere,  is  guilty  of  treason.1  sec.  5331,  R.S. 

1587.  Every  person  guilty  of  treason  shall  suffer  d«ath5tr^^hmfentof 
or,  at  the  discretion  of  the  court,  shall  be  imprisoned  at  ig£ul-v  ^  ^^- 
hard  labor  not  less  than  five  years,  and  fined  not  less  than  P-?89-.332  R    ' 
ten  thousand  dollars,  to  be  levied  on  and  collected  out  of 

any  or  all  of  his  property,  real  and  personal,  of  which  he 
was  the  owner  at  the  time  of  committing  such  treason,  any 
sale  or  conveyance  to  the  contrary  notwithstanding;  and 
every  person  so  convicted  of  treason  shall,  moreover,  be 
incapable  of  holding  any  office  under  the  United  States.2 

1588.  Every  person  owing  allegiance  to  the  United  States  tr^Pri8ion  ,of 
and  having  knowledge  of  the  commission  of  any  treason  g  A  pr.  stuToo^c. 
against  them,  who  conceals,  and  does  not,  as  soon  as  may  u.  's'.  «.'  wuti 

berger,  5Wh.,97; 

be,  disclose  and  make  known  the  same  to  the  President  or  Confiscation 

TT    .,     10.^  cases,  1  Woods, 

to  some  judge  of  the  United  States,  or  to  the  governor,  221;  u.s.^.Tract 

or  to  some  judge  or  justice  of  a  particular  State,  is  guilty  475Lan 

of  misprision  of  treason,  and  shall  be  imprisoned  not  more   Sec*5333'R>s- 

than  seven  years,  and  fined  not  more  than  one  thousand 

dollars. 

1589.  Every  person  who  incites,  sets  on  foot,  assists,  or  aln^itins 
engages  in  any  rebellion  or  insurrection  against  the  author-  ii«n  or 


ity  of  the  United  States,  or  the  laws  thereof,  or  gives  aid     uiy  17^1862,  c. 
or  comfort  thereto,  shall  be  punished  by  imprisonment  not  590.  s' 
more  than  ten  years,  or  by  a  fine  of  not  more  than  ten 
thousand  dollars,  or  by  both  of  such  punishments;  and 
shall,  moreover,  be  incapable  of  holding  any  office  under 
the  United  States. 

1590.  Every  citizen  of  the  United  States,  whether  actually  s  ^^JcaJ  °™5£ 
resident  or  abiding  within  the  same,  or  in  any  foreign  conn-         1   g°vern- 


try,  who,  without  the  permission  or  authority  of  the  Gov-    Jan.'  30,  1799,  c. 

J  '  1,  v.l,  p.  613. 

eminent,  directly  or  indirectly,  commences  or  carries  on    sec.533o,R.s. 
any  verbal  or  written  correspondence  or  intercourse  with 
any  foreign  government,  or  any  officer  or  agent  thereof, 

'Gearing  v.  TJ.  S.,  3  1ST.  &  H.,  165. 

•<U.  S.  v  The  Insurgents.  2  Ball.,  385;  U.  S.  v.  Mitchell,  2  Ball.,  348;  U.  S.  v.  Vil- 
lato,  2  Dall.,  370  ;  Ex  parte  Bolman  and  Swartwout,  4  Cr.,  75  ;  TJ.  S.  v.  Pryor,  3  Wash., 
234  •  TJ.  S.  v.  Hanway,  2  Wall.  Jr.  C.  C.,  139  ;  1  Burr's  Trial,  14-16  ;  2  Burr's  Trial,  402, 
405,417;  TJ.  S.  v.  Hoxie,  1  Paine,  265;  TJ.  S.  v.  Greathouse,  2  Abb.  C.  C.,  364;  Confis- 
cation Cases,  20  Wall.,  92;  Wallack  et  al.  v.  Van  Hiswick,  92  U.  S.,  202;  Windsors. 
McVeigh,  93  TJ,  S,,  274. 


600  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

with  an  intent  to  influence  the  measures  or  conduct  of  any 
foreign  government  or  of  any  officer  or  agent  thereof,  in 
relation  to  any  disputes  or  controversies  with  the  United 
States,  or  to  defeat  'the  measures  of  the  Government  of  the 
United  States  ;  and  every  person,  being  a  citizen  of,  or 
resident  within,  the  United  States,  and  not  duly  author- 
ized, who  counsels,  advises,  or  assists  in  any  such  corre- 
spondence, with  such  intent,  shall  be  punished  by  a  fine  of 
not  more  than  five  thousand  dollars,  and  by  imprisonment 
during  a  term  not  less  than  six  months,  nor  more  than 
three  years  5  but  nothing  in  this  section  shall  be  construed 
to  abridge  the  right  of  a  citizen  to  apply,  himself  or  his 
agent,  to  any  foreign  government,  or  the  agents  thereof, 
for  redress  of  any  injury  which  he  may  have  sustained  from 
such  government,  or  any  of  its  agents  or  subjects. 
SpSyOU8  c°n'  1591>  If  two  or  more  persons  in  any.  State  or  Territory 
33Jvyi2!'p86284;  consPire  to  overthrow,  put  down,  or  to  destroy  by  force  the 
'22v  'i^pSg'  Government  of  the  United  States,  or  to  levy  war  against 
'  ,  or  to  oppose  by  force  the  authority  thereof  ;  or  by 


163.    ^^^       '  force  to  prevent,  hinder,  or  delay  the  execution  of  any  law  of 

'  the  United  States  $  or  by  force  to  seize,  take,  or  possess  any 

property  of  the  United  States  contrary  to  the  authority 

thereof;  each  of  them  shall  be  punished  by  a  fine  of  not 

less  than  five  hundred  dollars  and  not  more  than  five  thou- 

sand dollars;  or  by  imprisonment,  with  or  without  hard 

labor,  for  a  period  not  less  than  six  months,  nor  more  than 

six  years,  or  by  both  such  fine  and  imprisonment. 

Recruiting  soi-     1592.  Every  person  who  recruits  soldiers  or  sailors  within 

diers    or   sailors  * 

to  serve  against  the  United  States  to  engage  in  armed  hostility  against  the 

theTJnited  J 

states.  same,  or  who  opens  within  the  United  States  a  recruiting 

56,  8Ugi,  V.  12,'  p!  station  for  the  enlistment  of  such  soldiers  or  sailors,  to 

317 

s'ec.  5837,  B.S.  serve  in  any  manner  in  armed  hostility  against  the  United 
States,  shall  be  fined  not  less  than  two  hundred  dollars, 
nor  more  than  one  thousand  dollars,  and  imprisoned  not 
less  than  one  year,  nor  more  than  five  years. 

so™  against  the     1593<  EveiT  soldier  or  sailor  enlisted  or  engaged  within 

UsJ£d2^e8'    the  United  States,  with  intent  to  serve  in  armed  hostility 

8ec;5838,R.s.  against  the  same,  shall  be  punished  by  a  fine  of  one  hun- 

dred dollars,  and  by  imprisonment  not  less  than  one  year, 

nor  more  than  three  years. 


CHAPTER 


PENSIONS. 


Par. 
1594-1612.  The    general    pension 

law. 
1617-1629.  Widows,  children,  and 

dependent  relations. 
1630-1632.  Pensions  under  special 

acts. 

1633, 1634.  Mexican  war  pensions. 
1635,1636.  Pensions     for     Indian 

wars  prior  to  1842. 
1637-1640.  The  dependent  pension 

law. 
1641-1642.  Pensions     to    army 

nurses,  etc. 

1643-1654.  Commencement  and  ar- 
rears of  pension,  etc. 


Par. 

1655-1663.  Declarations  and  evi- 
dence in  pension  cases.  • 

1664-1666.  Accrued  and  unclaimed 
pensions. 

1667-1673.  Attorney's  fees. 

1674-1683.  Payment  of  pensions. 

1684.  Duplicate  checks. 

1685-1692.  Special  examinations. 

1693, 1694.  Fees  of  examining  sur- 
geons. 

1695,1696.  Assignment  of  pen- 
sions. 

1697-1699.  Investigations. 

1700-1710.  Miscellaneous  provi- 
sions. 


THE    GENERAL   PENSION   LAW. 

1594.  Every  person  specified  in  the  several  classes  enu-    who  may  have 

pensions. 

merated  in  the  following  section,  who  has  been,  since  the  Mar.8,  ISTS,  c. 
fourth  day  of  March,  eighteen  hundred  and  sixty-one,  or  5ee,'w7.  v'( 
who  is  hereafter  disabled  under  the  conditions  therein 
stated,  shall,  upon  making  due  proof  of  the  fact,  accord- 
ing to  such  forms  and  regulations  as  are  or  may  be  pro- 
vided in  pursuance  of  law,  be  placed  on  the  list  of  invalid 
pensioners  of  the  United  States,  and  be  entitled  to  receive, 
for  a  total  disability,  or  a  permanent  specific  disability, 
such  pension  as  is  hereinafter  provided  in  such  cases;  and 
for  an  inferior  disability,  except  in  cases  of  permanent 
specific  disability,  for  which  the  rate  of  pension  is  expressly 
provided,  an  amount  proportionate  to  that  provided  for 
total  disability ;  and  such  pension  shall  commence  as  here- 
inafter provided,  and  continue  during  the  existence  of  the 
disability.1 


'The  act  of  March  3,  1883  (23  Stat.  L.,  362),  contains  the  requirement  that  "  all  ap- 
plicants for  pension  shall  be  presumed  to  have  had  no  disability  at  the  time  of 
enlistment,  but  such  presumption  may  be  rebutted." 


601 


602 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


boat,  e 


o 
tc. 


m£ated8e8enu~     1595t  The  Persons  entitled  as  beneficiaries  under  the 

preceding  section  are  as  follows  : 
officers  of     First.  Any  officer  of  the  Army,  including  regulars,  vol- 

Artuy  and  Navy, 

and  eniistedunteers,  and  militia,  or  any  officer  in  the  Navy  or  Marine 

men,  etc. 

ibid.  Corps,  or  any  enlisted  man,  however  employed,  in  the  mili- 

Sec  4693  R  S 

tary  or  naval  service  of  the  United  States,  or  in  its.  Marine 
Corps,  whether  regularly  mustered  or  not,  disabled  by  rea- 
son of  any  wound  or  injury  received,  or  disease  contracted, 
while  in  the  service  of  the  United  States  and  in  the  line 
of  duty.1 

Second.  Any  master  serving  on  a  gun-boat,  or  any  pilot, 
engineer,  sailor,  or  other  person  not  regularly  mustered, 
serving  upon  any  gun-boat  or  war-vessel  of  the  United 
States,  disabled  by  any  wound  or  injury  received,  or  other- 
wise incapacitated  while  in  the  line  of  duty,  for  procuring 
his  subsistence  by  manual  labor. 

Third.  Any  person  not  an  enlisted  soldier  in  the  Army, 
serving  for  the  time  being  as  a  member  of  the  militia  of 
any  State,  under  orders  of  an  officer  of  the  United  States, 
or  who  volunteered  for  the  time  being  to  serve  with  any 
regularly  organized  military  or  naval  force  of  the  United 
States,  or  who  otherwise  volunteered  and  rendered  service 
in  any  engagement  with  rebels  or  Indians,  disabled  in  con- 
sequence of  wounds  or  injury  received  in  the  line  of  duty 
in  such  temporary  service.  But  no  claim  of  a  State  militia- 
man, or  nonenlisted  person,  on  account  of  disability  from 
wounds,  or  injury  received  in  battle  with  rebels  or  Indians, 
while  temporarily  rendering  service,  shall  be  valid  unless 
prosecuted  to  a  successful  issue  prior  to  the  fourth  day  of 
July,  eighteen  hundred  and  seventy-four. 

^our^n'  Any  acting  assistant  or  contract  surgeon  disabled 
by  any  wound  or  injury  received  or  disease  contracted  in 
the  line  of  duty  while  actually  performing  the  duties  of 
assistant  surgeon  or  acting  assistant  surgeon  with  any 
military  force  in  the  field,  or  in  transitu,  or  in  hospital. 

Fifth-  Any  provost-marshal,  deputy  provost-marshal,  or 
enrolling-officer  disabled,  by  reason  of  any  wound  or  injury, 
received  in  the  discharge  of  his  duty,  to  procure  a  subsist- 
ence by  manual  labor. 

1596<  No  person  shall  be  entitled  to  a  pension  by  reason 
nof  wounds  or  injury  received  or  disease  contracted  in  the 
^7etc-  service  of  the  United  States  subsequent  to  the  twenty- 
B.  s.  seventh  day  of  July,  eighteen  hundred  and  sixty-eight, 
unless  the  person  who  was  wounded,  or  injured,  or 

1  For  statutes  regulating  the  remuster  of  officers,  see  the  joint  resolution  of  July 
26,  1866  (14  Stat.  L.,  368),  June  3,  1884  (23  Stat.  L.,  35),  and  February  3,  1887  (24 
Stat.  L.,  377). 


ant  sueoi 


wounds8  receded 


sec, 


THE    MILITARY    LAWS    OP    THE    UNITED    STATES.  603 

contracted  the  disease  was  in  the  line  of  duty;  and,  if  in  the 
military  service,  was  at  the  time  actually  in  the  field,  or  on 
the  march,  or  at  some  post,  fort,  or  garrison,  or  en  route, 
by  direction  of  competent  authority,  to  some  post,  fort,  or 
garrison;  or,  if  in  the  naval  service,  was  at  the  time  borne 
on  the  books  of  some  ship  or  other  vessel  of  the  United 
States,  at  sea  or  in  harbor,  actually  in  commission,  or  was 
at  some  naval  station,  or  on  his  way,  by  direction  of  com- 
petent authority,  to  the  United  States,  or  to  some  other 
vessel  or  naval  station,  or  hospital. 

1597.  The  pension  for  total  disability  shall  be  as  folio ^s,^^^  PJ»J 
namely:  For  lieutenant-colonel  and  all  officers  of  higher ^g^J1"*3^ 
rank  in  the  military  service  and  in  the  Marine  Corps,  and56?- 
for  captain,  and  all  officers  of  higher  rank,  commander, 
surgeon,  paymaster,  and  chief  engineer,  respectively  rank- 
ing with  commander  by  law,  lieutenant  commanding  and 
master  commanding,  in  the  naval  service,  thirty  dollars  per 
month;  for  major  in  the  military  service  and  in  the  Marine 
Corps,  and  lieutenant,  surgeon,  paymaster,  and  chief  engi- 
neer, respectively  ranking  with  lieutenant  by  law,  and 
passed  assistant  surgeon  in  the  naval  service,  twenty-five 
dollars  per  month ;-  for  captain  in  the  military  service  and 
in  the  Marine  Corps,  chaplain  in  the  Army,  and  provost- 
marshal,  professor  of  mathematics,  master,  assistant  sur 
geon,  assistant  paymaster,  and  chaplain  in  the  naval 
service,  twenty  dollars  per  month;  for  first  lieutenant  in 
the  military  service  and  in  the  Marine  Corps,  acting 
assistant  or  contract  surgeon,  and  deputy  provost-marshal, 
seventeen  dollars  per  month;  for  second  lieutenant  in  the 
military  service  and  in  the  Marine  Corps,  first  assistant 
engineer,  ensign,  and  pilot  in  the  naval  service,  and 
enrolling-officer,  fifteen  dollars  per  month;  for  cadet-mid- 
shipman, passed  midshipman,  midshipmen,  clerks  of  admi- 
rals and  paymasters  and  of  other  officers  commanding 
vessels,  second  and  third  assistant  engineer,  master's  mate, 
and  all  warrant-officers  in  the  naval  service,  ten  dollars  per 
month;  and  for  all  other  persons  whose  rank  or  office  is 
not  mentioned  in  this  section,  eight  dollars  per  month;  and 
the  masters,  pilots,  engineers,  sailors,  and  crews  upon  the 
gun-boats  and  war- vessels  shall  be  entitled  to  receive  the 
pension  allowed  herein  to  those  of  like  rank  in  the  naval 


service. 


1598.  Every  commissioned  officer  of  the  Army,  Navy,  or  In^e"08ir0annkccord" 
Marine  Corps  shall  receive  such  and  only  such  pension  as    |ec?i696,B.s. 

'By  section  4692,  Revised  Statutes  (paragraph  1594,  supra) 
shall  be  rated  in  proportion  to  that  for  total  disability . 


,  an  inferior  disability 


604  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

is  provided  in  the  preceding  section,  for  the  rank  he  held 
at  the  time  he  received  the  injury  or  contracted  the  disease 
which  resulted  in  the  disability,  on  account  of  which  he  may 
be  entitled  to  a  pension  5  and  any  commission  or  presiden- 
tial appointment,  regularly  issued  to  such  person,  shall  be 
taken  to  determine  his  rank  from  and  after  the  date,  as 
given  in  the  body  of  the  commission  or  appointment  con- 
ferring said  rank :  Provided,  That  a  vacancy  existed  in  the 
rank  thereby  conferred ;  that  the  person  commissioned  was 
not  disabled  for  military  duty ;  and  that  he  did  not  willfully 
neglect  or  refuse  to  be  mustered. 

e^Sanen18  sY  1599.  For  the  period  commencing  July  fourth,  eighteen 
cffi™andi8abiiity  hundred  and  sixty-four,  and  ending  June  third,  eighteen 
1872^  B  '  hundred  and  seventy-two,  those  persons  entitled  to  a  less 

Sec.  3,  ibid.,  p.  , 

568.  pension  than  hereinafter  mentioned,  who  shall  have  lost 

73,  v.  19,  p.  264.' c'  both  feet1  in  the  military  or  naval  service  and  in  the  line 

sec.  4697,  u.s.of  dut^  gliall  ^  entitled  to  a  pension  of  twenty  dollars 

per  month ;  for  the  same  period  those  persons  who,  under 
like  circumstances,  shall  have  lost  both  hands1  or  the  sight 
of  both  eyes,1  shall  be  entitled  to  a  pension  of  twenty-five 
dollars  per  month  ;  and  for  the  period  commencing  March 
third,  eighteen  hundred  and  sixty-five,  and  ending  June 
third,  eighteen  hundred  and  seventy-two,  those  persons 
who  under  like  circumstances  shall  have  lost  one  hand  and 
one  foot,  shall  be  entitled  to  a  pension  of  twenty  dollars 
per  month;  and  for  the  period  commencing  June  sixth, 
eighteen  hundred  and  sixty-six,  and  ending  June  third, 
eighteen  hundred  and  seventy-two,  those  persons  who 
under  like  circumstances  shall  have  lost  one  hand  or  one 
foot,  shall  be  entitled  to  a  pension  of  fifteen  dollars  per 
month ;  and  for  the  period  commencing  June  sixth,  eighteen 
hundred  and  sixty-six,  and  ending  June  third,  eighteen 
hundred  and  seventy-two,  those  persons  entitled  to  a  less 
pension  than  hereinafter  mentioned,  who  by  reason  of  injury 
received  or  disease  contracted  in  the  military  or  naval  serv- 
ice of  the  United  States  and  in  the  line  of  duty,  shall  have 
been  permanently  and  totally  disabled  in  both  hands,  or 
who  shall  have  lost  the  sight  of  one  eye,  the  other  having 
been  previously  lost,  or  who  shall  have  been  otherwise  so 
totally  and  permanently  disabled  as  to  render  them  utterly 
helpless,  or  so  nearly  so  as  to  require  regular  personal  aid 
and  attendance  of  another  person,  shall  be  entitled  to  a 
pension  of  twenty-five  dollars  per  month;  and  for  the  same 
period  those  who  under  like  circumstances  shall  have  been 
totally  and  permanently  disabled  in  both  feet,  or  in  one 

» By  the  act  of  June  18, 1874  (18  Stat.  L.,  78),  this  rate  was  fixed  at  $50  per  month. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  605 

hand  and  one  foot,  or  otherwise  so  disabled  as  to  be  inca- 
pacitated for  the  performance  of  any  manual  labor,  but 
not  so  much  as  to  require  regular  personal  aid  and  atten- 
tion, shall  be  entitled  to  a  pension  of  twenty  dollars  per 
month  j  and  for  the  same  period  all  persons  who  under  like 
circumstances  shall  have  been  totally  and  permanently  dis- 
abled in  one  hand,  or  one  foot,  or  otherwise  so  disabled  as 
to  render  their  inability  to  perform  manual  labor  equiva- 
lent to  the  loss  of  a  hand  or  foot,  shall  be  entitled  to- a 
pension  of  fifteen  dollars  per  month. 

1600.  That  all  persons  who,  while  in  the  military  or  naval 
service  of  the  United  States,  and  in  the  line  of  duty, 
have  lost  one  hand  and  one  foot,  or  been  totally  and  perma-  19'P-264- 
nently  disabled  in  both,  shall  be  entitled  to  a  pension  for 
each  of  such  disabilities,  and  at  such  a  rate  as  is  provided 
for  by  the  provisions  of  the  existing  laws  for  each  disa- 
bility:  Provided,  That  this  act  shall  not  be  so  construed  as 
to  reduce  pensions  in  any  case.  Act  of  February  28,  1877 
(19  Stat.  L.,  264). 

1601    Whereas,  it  is  apparent  that  the  present  pension    Preamble, 
paid  to  soldiers  and  sailors  who  have  lost  both  their  hands 
or  both  their  feet  in  the  service  of  the  country  is  greatly 
inadequate  to  the  support  of  such  as  have  families:  There- 
fore, 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America  in  Congress  assembled,  That  on  j  Op8eg8i0°fnb  *  £  £ 
and  after  the  passage  of  this  act,  all  soldiers  and  sailors hands'  feet.  or 

eyes. 

who  have  lost  either  both  their  hands  or  both  their  feet  or    Jnnei7,i878,v. 

20,  p.  144. 

the  sight  of  both  eyes  in  the  service  of  the  United  States, 
shall  receive,  in  lieu  of  all  pensions  now  paid  them  by  the 
Government  of  the  United  States,  and  there  shall  be  paid 
to  them,  in  the  same  manner  as  pensions  are  now  paid  to 
such  persons,  the  sum  of  seventy  two  dollars  per  month. 
Act  of  June  17,  1878  (20  Stat.  L,  144). 

1602-  That  the  act  of  June  seventeenth,  eighteen  hun-    Fortotaibimd- 
dred  and  seventy  eight,  entitled  "An  act  to  increase  the    Mar.  3, 1379,  v. 
pensions  of  certain  soldiers  and  sailors  who  have  lost  both 
their  hands  or  both  their  feet,  or  the  sight  of  both  eyes,  in 
the  service  of  the  country",  be  so  construed  as  to  include 
all  soldiers  and  sailors  who  have  become  totally  blind  from 
causes  occurring  in  the  service  of  the  United  States.    Act 
of  March  5, 1879  (20  Stat.  L.,  484). 

1603.  That  all  pensioners  now  on  the  pension-rolls,  or,  Rate  for  loss  of 

loff  BI\)  liip  joint. 

who  may  hereafter  be  placed  thereon,  for  amputation  of   Mar.  3, 1879,  v. 
either  leg  at  the  hip  joint,  shall  receive  a  pension  at  the 
rate  of  thirty-seven  dollars  and  fifty  cents  per  month  from 


606  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

the  date  of  the  approval  of  this  act.    Act  of  March  3,  1879 
(20  Stat.  L.,  483). 
increase  of     1604,  That  from  and  after  the  passage  of  this  act  all  per- 

pension   of    sol-  .  A 

diers  and  sailors  sons  on  the  peDSion-roll.  and  all  persons  hereafter  granted  a 

who  have  lopt  an  .  . 

arm  or  leg  in  serv-  pension,  who,  while  in  the  military  or  naval  service  of  the 
United  States,  and  in  the  line  of  duty,  shall  have  lost  one 
hand  or  one  foot,  or  been  totally  or  permanently  disabled 
in  the  same,  or  otherwise  so  disabled  as  to  render  their 
incapacity  to  perform  manual  labor  equivalent  to  the  loss 


22Ma4i>3'  1883'  v'  °^  a  nan(^  or  a  f°°t>  shall  receive  a  pension  of  twenty-four 
dollars  per  month;  that  all  persons  now  on  the  pension- 
roll,  and  all  persons  hereafter  granted  a  pension,  who  in 
above8  ei  bowar^like  manner  shall  have  lost  either  an  arm  at  or  above  the 
kneeab°ve  thee^ow,  or  a  leg  at  or  above  the  knee,  or  shall  have  been 
otherwise  so  disabled  as  to  be  incapacitated  for  performing 
any  manual  labor,  but  not  so  much  as  to  require  regular 
personal  aid  and  attendance,  shall  receive  a  pension  of 
thirty  dollars  per  month  :  Provided,  That  nothing  contained 
in  this  act  shall  be  construed  to  repeal  section  forty-six 
hundred  and  ninety-nine  of  the  Revised  Statutes  of  the 
United  States,  or  to  change  the  rate  of  eighteen  dollars  per 
month  therein  mentioned  to  be  proportionately  divided  for 
any  degree  of  disability  established  for  which  section  forty- 
six  hundred  and  ninety-five  makes  no  provision.  Act  of 
March  3,  1883  (22  Stat.  L.,  453.) 

in      1605f  Tnat  from  and  after  tlie  Passa£e  of  tnis  act  a11  Per' 
sons  on  the  pension-rolls,  and  all  persons  hereafter  granted 

a  pension,  who,  while  in  the  military  or  naval  service  of 
of  hand  the  United  States  and  in  line  of  duty,  shall  have  lost  one 

Aug.  4,  1886,  v.  hand  or  one  foot,  or  been  totally  disabled  in  the  same,  shall 
receive  a  pension  of  thirty  dollars  a  month;  that  all  per- 
sons now  on  the  pension-rolls,  and  all  persons  hereafter 

LOSS  of  arm  at  granted  a  pension,  who  in  like  manner  shall  have  lost 

or  above  elbow  ; 

leg  at  or  above  either  an  arm  at  or  above  the  elbow  or  a  leg  at  or  above 
the  knee,1  or  been  totally  disabled  in  the  same,  shall  receive 
a  pension  of  thirty-six  dollars  per  month;  and  that  all  per- 
sons now  on  the  pension-rolls,  and  all  persons,  hereafter 

shouide°rf;  I™  at  granted  a  pension  who  in  like  manner  shall  have  lost 

MP-  either  an  arm  at  the  shoulder-joint  or  a  leg  at  the  hip-joint, 

or  so  near  the  joint  as  to  prevent  the  use  of  an  artificial 

limb,  shall  receive  a  pension  at  the  rate  of  forty-five  dol- 

R^,  Beeves®,  lars  per  month:  Provided,  That  nothing  contained  in  this 

pealed.'  act  shall  be  construed  to  repeal  section  forty-six  hundred 

and  ninety-nine  of  the  Revised  Statutes  of  the  United 
States,  or  to  change  the  rate  of  eighteen  dollars  per  month 


1  The  act  of  June  18,  1874  (18  Stat.  L.,  78),  fixed  this  rate  at  $24  per  month. 


THE   MILITARY    LAWS    OP    THE    UNITED    STATES.  607 

therein  mentioned  to  be  proportionately  divided  for  any 
degree  of  disability  established  for  which  section  forty- 
six  hundred  and  ninety-five  makes  no  provision.  Act  of 
August  4,  1886  (24  Stat.  L.,  220}. 

1606.  That  all  soldiers  and  sailors  of  the  United  States 

who  have  had  an  arm  taken  off  at  the  shoulder -joint,          ion  here 

caused  by  injuries  received  in  the  service  of  their  country 

while  in  the  line  of  duty,  and  who  are  now  receiving  pen- 

sions.  shall  have  their  pensions  increased  to  the  same  at  hip  joint. 

Mar.  3,  low,  v. 

amount  that  the  law  now  gives  to  soldiers  and  sailors  who  23,  p.  437. 
have  lost  a  leg  at  the  hip-joint;  and  this  act  shall  apply  to 
all  who  shall  be  hereafter  placed  on  the  pension-roll.    Act 
of  March  3,  1885  (23  Stat.  L.,  437). 

1607.  From  and  after  June  fourth,  eighteen  hundred  and  pe^ane?t8  ll 
seventy-two,  all  persons  entitled  by  law  to  a  less 

than  hereinafter  specified,  who,  while  in  the  military 

naval  service  of  the  United  States,  and  in  line  of  duty,  f gps- 

shall  have  lost  the  sight  of  both  eyes,  or  shall  have  lost  the  June' is,  1874,  c! 

299  v  18  p.  78. 

sight  of  one  eye,  the  sight  of  the  other  having  been  pre-  sec.4698,B.s 
viously  lost,  or  shall  have  lost  both  hands,  or  shall  have 
lost  both  feet,  or  been  permanently  and  totally  disabled  in 
the  same,  or  otherwise  so  permanently  and  totally  disabled 
as  to  render  them  utterly  helpless,  or  so  nearly  so  as  to  re- 
quire the  regular  personal  aid  and  attendance  of  another 
person,  shall  be  entitled  to  a  pension  of  thirty-one  dollars 
and  twenty- five  cents  per  month;  and  all  persons  who, 
under  like  circumstances,  shall  have  lost  one  hand  and  one 
foot,  or  been  totally  and  permanently  disabled  in  the  same, 
or  otherwise  so  disabled  as  to  be  incapacitated  for  perform- 
ing any  manual  labor,  but  not  so  much  as  to  require  regular 
personal  aid  and  attendance,  shall  be  entitled  to  a  pension 
of  twenty-four  dollars  per  month;  and  all  persons  who, 
under  like  circumstances,  shall  have  lost  one  hand,  or  one 
foot,  or  been  totally  and  permanently  disabled  in  the  same, 
or  otherwise  so  disabled  as  to  render  their  incapacity  to 
perform  manual  labor  equivalent  to  the  loss  of  a  hand  or 
foot,  shall  be  entitled  to  a  pension  of  eighteen  dollars  per 
month :  Provided,  That  all  persons  who,  under  like  circum- 
stances, have  lost  a  leg  above  the  knee,  and  in  consequence 
thereof  are  so  disabled  that  they  cannot  use  artificial  limbs, 
shall  be  rated  in  the  second  class  and  receive  twenty-four 
dollars  per  month  from  and  after  June  fourth,  eighteen  hun. 
dred  and  seventy- two;  and  all  persons  who,  under  like  cir- 
cumstances, shall  have  lost  the  hearing  of  both  ears,  shall 
be  entitled  to  a  pension  of  thirteen  dollars  per  month  from 
the  same  date:  Provided,  That  the  pension  for  a  disability 


608      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

not  permanent,  equivalent  in  degree  to  any  provided  for  in 
this  section,  shall,  during  the  continuance  of  the  disability 
in  such  degree,  be  at  the  same  rate  as  that  herein  provided 
for  a  permanent  disability  of  like  degree. 

increase  of     1608.  That  all  soldiers  and  sailors  who  are  now  receiving 

pesokiierB    ana  a  pension  of  fifty  dollars  per  month,  under  the  provisions 

heiress™  U     y°f  an  act  entitled  "An  act  to  increase  the  pension  of  sol- 

v.2i,npe28i!  188°'  diers  and  sailors  who  have  been  totally  disabled,"  approved 

June  eighteenth,  eighteen  hundred  and  seventy-four,  shall 

receive,  in  lieu  of  all  pensions  now  paid  them  by  the  Gov- 

ernment of  the  United  States,  and  there  shall  be  paid  them 

in  the  same  manner  as  pensions  are  now  paid  to  such  per- 

sons, the  sum  of  seventy-two  dollars  L  per  month.     Sec.  1,  act 

of  June  16,  1880  (21  Stat.  L.,  281}. 

•eJtbe  same  8ub  1609t  A11  pensioners  whose  pensions  shall  be  increased 
sec.  2,  June  16,  by  the  provisions  of  this  act  from  fifty  dollars  per  month 
to  seventy  two  dollars  per  month  shall  be  paid  the  differ- 
ence between  said  sums  monthly,  from  June  seventeenth, 
eighteen  hundred  and  seventy  eight,  to  the  time  of  the 
taking  effect  of  this  act.  Sec.  2,  act  of  June  16,  1880  (21 
Stat.  L.,  281). 

Pensions  for     1610.  That  from  and  after  the  passage  of  this  act  all 

hand's  increased,  persons  who,  in  the  military  or  naval  service  of  the  United 

25*p  .Vg2'  1889'  "  '  States  and  in  the  line  of  duty,  have  lost  both  hands,  shall 

be  entitled  to  a  pension  of  one  hundred  dollars  per  month. 

act  of  February  12,  1889  (25  Stat.  L.,  659). 

increase  to  to-     1611.  That  all  soldiers,  sailors,  and  marines  who  have 
since  the  sixteenth  day  of  June,  eighteen  hundred  and 


26,  Pai6.  '  eighty,  or  who  may  hereafter  become  so  totally  and  per- 
v.  21,  p.  281.  manentiy  helpless  from  injuries  received  or  disease  con- 
tracted in  the  service  and  line  of  duty  as  to  require  the 
regular  personal  aid  and  attendance  of  another  person,  or 
who,  if  otherwise  entitled,  were  excluded  from  the  provi- 
sions of  "An  act  to  increase  pensions  of  certain  pensioned 
soldiers  and  sailors  who  are  utterly  helpless  from  injuries 
received  or  disease  contracted  while  in  the  United  States 
service,"  approved  June  sixteenth,  eighteen  hundred  and 
eighty,  shall  be  entitled  to  receive  a  pension  at  the  rate  of 
seventy-two  dollars  per  month  from  the  date  of  the  passage 
of  this  act  or  of  the  certificate  of  the  examining  surgeon 
or  board  of  surgeons  showing  such  degree  of  disability 
made  subsequent  to  the  passage  of  this  act.  Act  of  March 
4,  1890  (26  Stat.  L.,  16). 
The  same  sub-  1612.  That  soldiers  and  sailors  who  are  shown  to  be  to- 

ject, 

J  ^he  act  of  June  18,  1874  (18  Stat.  L.,  78),  fixed  this  rate  of  pension  at  $50  per  month. 


THE    MILITARY   LAWS    OP   THE    UNITED    STATES.  609 

tally  incapacitated  for  performing  manual  labor  by  reason  ,  Kate  where  to- 

J  tally    mcapaci- 

of  injuries  received  or  disease  contracted  in  the  service  of  }Jgu'enrequirillg 
the  United  States  and  in  line  of  duty,  and  who  are  thereby  ance. 

*      July  14,  1892,  v. 

disabled  to  such  a  degree  as  to  require  frequent  and  peri-  7,  p.  149. 
odical,  though  not  regular  and  constant,  personal  aid  and 
attendance  of  another  person,  shall  be  entitled  to  receive 
a  pension  of  fifty  dollars  per  month  from  and  after  the  date 
of  the  certificate  of  the  examining  surgeon  or  board  of  ex- 
amining surgeons  showing  such  degree  of  disability,  and 
made  subsequent  to  the  passage  of  this  act.1  Act  of  July 
14,1892(27  Stat.L.,  149). 

1613.  The  rate  of  eighteen  dollars  per  month  may  be  pro-  dl*  JSf&y8  not 
portionately  divided  for  any  degree  of  disability  estab-  viSeTfor6  pr° 
lished  for  which  section  forty-six  hundred  and  ninety-nve23^8a£v3li7873569' 
makes  no  provision.  se8c.4699',pR.s.' 

1614.  Except  in  cases  of  permanent  specific  disabilities,  si^greaseofpen' 
no  increase  of  pension  shall  be  allowed  to  commence  prior    Mar.  3,  1373,  c. 
to  the  date  of  the  examining  surgeon's  certificate  estab-  509'; 
lishing  the  same  made  under  the  pending  claim  for  increase  ; 

and  in  this,  as  well  as  all  other  cases,  the  certificate  of  an 
examining  surgeon,  or  of  a  board  of  examining  surgeons, 
shall  be  subject  to  the  approval  of  the  Commissioner  of 
Pensions. 

1615.  Officers  absent  on  sick-leave,  and  enlisted  men    Absentees. 
absent  on  sick-  furlough,  or  on  veteran-furlough  with  the    lecl^oofB.s. 
organization  to  which  they  belong,  shall  be  regarded  in 

the  administration  of  the  pension  laws  in  the  same  manner 
as  if  they  were  in  the  field  or  hospital. 

1616.  The  period  of  service  of  all  persons  entitled  to  the  .  Period  of  serv- 
benefits  of  the  pension-laws,  or  on  account  of  whose  death 


any  person  may  become  entitled  to  a  pension,  shall  be  con-     ec'.oi  B.S. 
strued  to  extend  to  the  time  of  disbanding  the  organization 
to  which  such  persons  belonged,  or  until  their  actual  dis- 
charge for  other  cause  than  the  expiration  of  the  service 
of  such  organization. 

WIDOWS  AND   CHILDREN. 

1617.  If  any  person  embraced  within  the  provisions  of  ,TJ2dow8   and 


,  V. 


sections  forty-six  hundred  and  ninety-two  and  forty-six  9Aug- J. 1882. 
hundred  and  ninety- three  has  died  since  the  fourth  day  of  "sec.4°708,B.s. 
March,  eighteen  hundred  and  sixty-one,  or  hereafter  dies, 
by  reason  of  any  wound,  injury,  or  disease  which  under  the 
conditions  and  limitations  of  such  sections  would  have  en- 
titled him  to  an  invalid  pension  had  he  been  disabled,  his 
widow  or  if  there  be  no  widow,  or  in  case  of  her  death 
without  payment  to  her  of  any  part  of  the  pension  herein- 

>The  act  of  August  27,  1888  (25  Stat.  L.,  449),  fixes  the  rate  of  pension  for  total 
deafness  at  $30  per  month. 

1919 39 


610      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

after  mentioned,  his  child  or  children  under  sixteen  years 
of  age,  shall  be  entitled  to  receive  the  same  pension  as  the 
husband  or  father  would  have  been  entitled  to  had  he  been 
totally  disabled,  to  commence  from  the  death  of  the  hus- 
band or  father,  to  continue  to  the  widow  during  her  widow- 
hood, and  to  his  child  or  children  until  they  severally  attain 
the  age  of  sixteen  years,  and  no  longer;  and  if  the  widow 
remarry,  the  child  or  children  shall  be  entitled  from  the 
date  of  remarriage,  except  when  such  widow  has  continued 
to  draw  the  pension -money  after  her  remarriage,  in  contra- 
vention of  law,  and  such  child  or  children  have  resided 
with  and  been  supported  by  her,  their  pension  will  com- 
mence at  the  date  to  which  the  widow  was  last  paid.1  Act 
of  August  7,  1882  (22  Stat.  £.,  345). 

sionctrwidow8;  1618<  Tne  Pensions  of  widows  shall  be  increased  from  and 
etsec  9  ibid  p  a^r  tne  twenty-fifth  day  of  July,  eighteen  hundred  and 
57s'ec  4703  R  s  sixty'six  at  the  rate  of  two  dollars  per  month  for  each  child 
under  the  age  of  sixteen  years,  of  the  husband  on  accoiiDt 
of  whose  death  the  claim  has  been,  or  shall  be,  granted. 
And  in  every  case  in  which  the  deceased  husband  has  left, 
or  shall  leave,  no  widow,  or  where  his  widow  has  died  or 
married  again,  or  where  she  has  been  deprived  of  her  pen- 
sion under  the  provisions  of  the  pension-law,  the  pension 
granted  to  such  child  or  children  shall  be  increased  to  the 
same  amount  per  month  that  would  be  allowed  under  the 
foregoing  provisions  to  the  widow,  if  living  and  entitled  to 
a  pension :  Provided,  That  the  additional  pension  herein 
granted  to  the  widow  on  account  of  the  child  or  children  of 
the  husband  by  a  former  wife  shall  be  paid  to  her  only  for 
such  period  of  her  widowhood  as  she  has  been,  or  shall  be, 
charged  with  the  maintenance  of  such  child  or  children ; 
for  any  period  during  which  she  has  not  been,  or  she  shall 
not  be,  so  charged,  it  shall  be  granted  and  paid  to  the 
guardian  of  such  child  or  children :  Provided  further,  That 
a  widow  or  guardian  to  whom  increase  of  pension  has  been, 
or  shall  hereafter  be,  granted  on  account  of  minor  children, 
shall  not  be  deprived  thereof  by  reason  of  their  being  main- 
tained in  whole  or  in  part  at  the  expense  of  a  State  or  the 
public  in  any  educational  institution,  or  in  any  institution 
organized  for  the  care  of  soldiers'  orphans. 

deSJi  ^eg^tT     1619'  Iu  tlie  administration  of  the  pension-laws,  children 
'"s^c  10  ibid     k°rn  before  the  marriage  of  their  parents,  if  acknowledged 
seC;4704,E.s.by  the  father  before  or  after  the  marriage,  shall  be  deemed 
legitimate. 

1  Amended  by  act  of  March  19,  18e6  (24  Stat.  L.,  5).    See,  also,  acts  of  June  9,  1880 
(21  Stat.  L.,  170),  and  June  7,  1888  (25  Stat,  L.,  173). 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  611 

1620.  The  widows  of  colored  and  Indian  soldiers  and    widows  of  coi- 

oral  and  Indian 

sailors  who  have  died,  or  shall  hereafter  die,  by  reason  of  soldiers,  etc. 

Sec.  11,  ibid. 

wounds  or  injuries  received,  or  casualty  received  ,  or  disease   sec.  4705,  B.  s. 

contracted,  in  the  military  or  naval  service  of  the  United 

States,  and  in  the  line  of  duty,  shall  be  entitled  to  receive 

the  pension  provided  by  law  without  other  evidence  of 

marriage  than  satisfactory  proof  that  the  parties  were 

joined  in  marriage  by  some  ceremony  deemed  by  them 

obligatory,  or  habitually  recognized  each  other  as  man  and 

wife,  and  were  so  recognized  by  their  neighbors,  and  lived 

together  as  such  up  to  the  date  of  enlistment,  when  such 

soldier  or  sailor  died  in  the  service,  or,  if  otherwise,  to 

date  of  death  ;  and  the  children  born  of  any  marriage  so 

proved  shall  be  deemed  and  held  to  be  lawful  children  of 

such  soldier  or  sailor,  but  this  section  shall  not  be  appli- 

cable to  any  claims  on  account  of  persons  who  enlist  after 

the  third  day  of  March,  one  thousand  eight  hundred  and 

seventy-three. 

1621.  That  marriages,  except  such  as  are  mentioned  in   Marriages  to 


section  forty-  seven  hundred  and  five  of  the  Kevised  Stat-  mlage  under 
utes,  shall  be  proven  in  pension  cases  to  be  legal  marriages  lase8c.e2?'Aug.  7, 
according  to  the  law  of  the  place  where  the  parties  resided  1882'  Vl  22>  p>  34 
at  the  time  of  marriage  or  at  the  time  when  the  right  to 
pension  accrued  ;  and  the  open  and  notorious  adulterous 
cohabitation  of  a  widow  who  is  a  pensioner  shall  operate 
to  terminate  her  pension  from  the  commencement  of  such 
cohabitation.     Sec.  2,  act  of  August  7,  1882  (22  Stat.  L.,  345). 

1622.  That  from  and  after  the  passage  of  this  act  the    increase  of 

.         „  .  i  -  1-11  i-i  -,,  pensions  to  wid- 

rate  of  pension  for  widows,  minor  children,  and  dependent  ows  and  depe 

...  .  ,  .111  i  -i  en*  relatives. 

relatives  now  on  the  pension-roll,  or  hereafter  to  be  placed  Mar.  19,  iss 
on  the  pension-roll,  and  entitled  to  receive  a  less  rate  than  >p' 
hereinafter  provided,  shall  be  twelve  dollars  per  month  ; 
and  nothing  herein  shall  be  construed  to  affect  the  existing 
allowance  of  two  dollars  per  month  for  each  child  under 
the  age  of  sixteen  years:  Provided,  That  this  act  shall 
apply  only  to  widows  who  were  married  to  the  deceased 
soldier  or  sailor  prior  to  its  passage  and  to  those  who  may 
hereafter  marry  prior  to  or  during  the  service  of  the  soldier 
or  sailor.  And  all  acts  or  parts  of  acts  inconsistent  with 
the  provisions  of  this  act  are  hereby  repealed.  Sec.  1,  act 
of  March  19,  1886  (24  Stat.  L.,  5). 

1623.  That  no  claim  agent  or  attorney  shall  be  recognized  not1t0mbe 
in  the  adjudication  of  claims  under  this  act,  nor  shall  any  nigj'2  ibid 
such  person  be  entitled  to  receive  any  compensation  what- 

ever for  services  or  pretended  services  in  making  applica- 
tions thereunder.     Sec.  2,  ibid. 


612  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 

widows'  pen-     1624.  That  all  pensions  which  have  been,  or  which  may 

s ion s    to    date 

from   death   of  hereafter  be,  granted  under  the  general  laws  regulating 

husband. 

June  7, 1888,  v.  pensions  to  widows  in  consequence  of  death  occurring  from 
a  cause  which  originated  in  the  service  since  the  fourth 
day  of  March,  eighteen  hundred  and  sixty-one,  shall  com- 
mence from  the  date  of  death  of  the  husband.  Act  of  June 
7,  1888  (25  Stat.  L.,  173). 

Abandonment,     1625.  If  any  person  has  died,  or   shall  hereafter  die, 

etc.,  by  widow. 

sec.  4706,R.s.  leaving  a  widow  entitled  to  a  pension  by  reason  of  his 
death,  and  a  child  or  children  under  sixteen  years  of  age 
by  such  widow,  and  it  shall  be  duly  certified  under  seal 
by  any  court  having  probate  jurisdiction,  that  satisfactory 
evidence  has  been  produced  before  such  court,  upon  due 
notice  to  the  widow,  that  she  has  abandoned  the  care  of 
such  child  or  children,  or  that  she  is  an  unsuitable  person, 
by  reason  of  immoral  conduct,  to  have  the  custody  of  the 
same,  on  presentation  of  satisfactory  evidence  thereof  to 
the  Commissioner  of  Pensions,  no  pension  shall  be  allowed 
to  such  widow  until  such  child  or  children  shall  have 
attained  the  age  of  sixteen  years,  any  provisions  of  law  to 
the  contrary  notwithstanding;  and  the  said  child  or  chil- 
dren shall  be  pensioned  in  the  same  manner,  and  from  the 
same  date,  as  if  no  widow  had  survived  such  person,  and 
such  pension  shall  be  paid  to  the  guardian  of  such  child  or 
children;  but  if  in  any  case  payment  of  pension  shall  have 
been  made  to  the  widow,  the  pension  to  the  child  or  chil- 
dren shall  commence  from  the  date  to  which  her  pension 
has  been  paid. 

Sec.4735,R.s.  1626.  No  pension  shall  be  granted  to  a  widow  for  the 
same  time  that  her  husband  received  one. 

DEPENDENT  RELATIVES. 

succession  of     1627.  If  any  person  embraced  within  the  provisions  of 

dependent    rela  *•     •       '*  ,          -,       j  i  in 

tives.  sections  forty-six  hundred  and  ninety-two  and  forty-six 

i873,v.'i7,pa57].  hundred  and  ninety-three  has  died  since  the  fourth  day  of 
>ec.  4707,  R.S.  jy[arcj^  eighteen  hundred  and  sixty-one,  or  shall  hereafter 
die,  by  reason  of  any  wound,  injury,  casualty,  or  disease, 
which,  under  the  conditions  and  limitations  of  such -sec- 
tions, would  have  entitled  him  to  an  invalid  pension,  and 
has  not  left  or  shall  not  leave  a  widow  or  legitimate  child, 
but  has  left  or  shall  leave  other  relative  or  relatives  who 
were  dependent  upon  him  for  support,  in  whole  or  in  part, 
at  the  date  of  his  death,  such  relative  or  relatives  shall  be 
entitled,  in  the  following  order  of  precedence,  to  receive 
the  same  pension  as  such  person  would  have  been  entitled 
to  had  he  been  totally  disabled,  to  commence  from  the  death 


THE   MILITARY   LAWS    OF   THE   UNITED   STATES.  613 

of  sucli  person,  namely:  first,  the  mother;  secondly,  the 
father ;  thirdly,  orphan  brothers  and  sisters  under  sixteen 
years  of  age,  who  shall  be  pensioned  jointly:  Provided, 
That  where  orphan  children  of  the  same  parent  have  differ- 
ent guardians,  or  a  portion  of  them  only  are  under  guard- 
ianship, the  share  of  the  joint  pension  to  which  each  ward 
shall  be  entitled  shall  be  paid  to  the  guardian  of  such 
ward :  Provided,  That  if  in  any  case  said  person  shall  have 
left  father  and  mother  who  were  dependent  upon  him,  then, 
on  the  death  of  the  mother,  the  father  shall  become  entitled 
to  the  pension,  commencing  from  and  after  the  death  of 
the  mother;  and  upon  the  death  of  the  mother  and  father, 
or  upon  the  death  of  the  father  and  the  remarriage  of  the 
mother,  the  dependent  brothers  and  sisters  under  sixteen 
years  of  age  shall  jointly  become  entitled  to  such  pension 
until  they  attain  the  age  of  sixteen  years  respectively, 
commencing  from  the  death  or  remarriage  of  the  party  who 
had  the  prior  right  to  the  pension :  Provided,  That  a  mother 
shall  be  assumed  to  have  been  dependent  upon  her  son 
within  the  meaning  of  this  section  if,  at  the  date  of  his 
death,  she  had  no  other  adequate  means  of  support  than 
the  ordinary  proceeds  of  her  own  manual  labor  and  the 
contributions  of  said  son  or  of  any  other  persons  not  legally 
bound  to  aid  in  her  support;  and  if,  by  actual  contributions, 
or  in  any  other  way,  the  son  had  recognized  his  obligations 
to  aid  in  support  of  his  mother,  or  was  by  law  bound  to 
such  support,  and  that  a  father  or  minor  brother  or  sister 
shall,  in  like  manner  and  under  like  conditions,  be  assumed 
to  have  been  dependent,  except  that  the  income  which  was 
derived  or  derivable  from  his  actual  or  possible  manual 
labor  shall  be  taken  into  account  in  estimating  a  father's 
means  of  independent  support:  Provided  further,  That  the 
pension  allowed  to  any  person  on  account  of  his  or  her 
dependence,  as  hereinbefore  provided,  shall  not  be  paid  for 
any  period  during  which  it  shall  not  be  necessary  as  a  means 
of  adequate  subsistence. 

1628.  The  remarriage  of  any  widow,  dependent  mother, 
or  dependent  sister,  entitled  to  pension,  shall  not  bar  her 
right  to  such  pension  to  the  date  of  her  remarriage,  whether 
an  application  therefor  was  filed  before  or  after  such  mar- 
riage; but  on  the  remarriage  of  any  widow,  dependent 
mother,  or  dependent  sister,  having  a  pension,  such  pension 
shall  cease. 

1629.  That  in  considering  the  pension  claims  of  depend- 
ent  parents,  the  fact  of  the  soldier's  death  by  reason  of 

any  wound,  injury,  casualty,  or  disease,  which,  under  the  sailors,  widows, 

, . , .  child  ren,  and  de- 

conditions  and  limitations  of  existing  laws,  would  have  pendent  parents. 


614  THE   MILITARY   LAWS   OF   THE   UNITED    STATES. 


enent  arentf  en^i^e^  him  to  an  invalid  pension,  and  the  fact  that  the 
Evidence  re-  soldier  left  no  widow  or  minor  children  having  been  shown 
q  June  27,  1890,  as  required  by  law,  it  shall  be  necessary  only  to  show  by 
competent  and  sufficient  evidence  that  such  parent  or  par- 
ents are  without  other  present  means  of  support  than  their 
own  manual  labor  or  the  contributions  of  others  not  legally 
Co  mm  once  -hoimcl  for  their  support:  Provided.  That  all  pensions  al- 

ment  and  contnr 

uance  of  pen  lowed  to  dependent  parents  under  this  act  shall  commence 
from  the  date  of  the  filing  of  the  application  hereuuder,  and 
shall  continue  no  longer  than  the  existence  of  the  depend- 
ence. Sec.  1,  act  of  June  27,  1890  (26  Stat.  L.,  182). 

PENSIONS  UNDER   SPECIAL   ACTS. 

siSise*  uiuzld"      1630.  That  all  persons  entitled  to  pensions  under  special 
1  1874'  v'  ac*s  nx*n£  the  rate  of  such  pensions,  and  now  receiving  or 


entitled  to  receive  a  less  pension  than  that  allowed  by  the 
general  pension-laws  under  like  circumstances,  are,  in  lieu 
of  their  present  rate  of  pension,  hereby  declared  to  be  en- 
titled to  the  benefits  and  subject  to  the  limitations  of  the 
general  pension  laws  entitled  "An  act  to  revise,  consoli- 
date, and  amend  the  laws  relating  to  pensions,"  approved 
March  third,  eighteen  hundred  and  seventy-  three;  and  that 
Pensions  grant-  this  act  go  into  effect  from  and  after  its  passage:  Provided, 
actnot8reduCced.  That  this  act  shall  not  be  construed  to  reduce  any  pension 
granted  by  special  act.     Act  of  June  6,  1874  (18  Stat.  L.,  61). 
Pensionsunder     1631.  When  the  rate,  commencement,  and  duration  of  a 

special  acts  of  7 

C  Secr472o  B  s  Pens^on  allowed  by  special  act  are  fixed  by  such  act,  they 

*  shall  not  be  subject  to  be  varied  by  the  provisions  and 

limitations  of  the  general  pension-laws,  but  when  not  thus 

fixed  the  rate  and  continuance  of  the  pension  shall  be  sub- 

ject to  variation  in  accordance  with  the  general  laws,  and 

its  commencement  shall  date  from  the  passage  of  the  spe- 

cial act,  and  the  Commissioner  of  Pensions  shall,  upon 

satisfactory  evidence  that  fraud  was  perpetrated  in  obtain- 

ing such  special  act,  suspend  payment  thereupon  until 

the  propriety  of  repealing  the  same  can  be  considered  by 

Congress.     See  act  of  June  6,  1874  (18  Stat.  L.,  61). 

de?e"sieciai8iaw     *632.  That  no  person  who  is  now  receiving  or  shall  here- 

nottoreceiveany  after  receive  a  pension  under  a  special  act  shall  be  entitled 

other  rehet   un-  .  A 

less,  etc.  to  receive  in  addition  thereto  a  pension  under  the  general 

Sec.  5,  July  25, 

1882,  v.  22,  p.  176.  law,  unless  the  special  act  expressly  states  that  the  pension 
granted  thereby  is  in  addition  to  the  pension  which  said 
person  is  entitled  to  receive  under  the  general  law.  Sec.  5, 
act  ofJuiy  25,  1882  (22  Stat.  L.,  176). 


THE    MILITARY   LAWS   OF   THE    UNITED    STATES.  615 


MEXICAN   WAR   PENSIONS. 

1633.  Any  officer,  non-commissioned  officer,  musician  or    £?n8i®n«  to 

soldiers  of  Mex- 

private,  whether  of  the  Regular  Army  or  volunteers  dis-  io5JwlJ!j- 

abled  by  reason  of  injury  received  or  disease  contracted  ie,  a.  f,v.  9,  p.  10.' 

while  in  the  line  of  duty  in  actual  service  in  the  war  with 

Mexico,  or  in  going  to  or  returning  from  the  same,  who 

received  an  honorable  discharge,  shall   be  entitled  to  a 

pension  proportionate  to  his  disability,  not  exceeding  for 

total  disability  half  the  pay  of  his  rank  at  the  date  at 

which  he  received  the  wound  or  contracted  the  disease 

which  resulted  in  such  disability.    But  no  pension  shall 

exceed  half  the  pay  of  a  lieutenant-colonel. 

1634.  If  any  officer  or  other  person  referred  to  in  the    widows  and 

children  of  Mex- 

preceding  section  has  died  or  shall  hereafter  die  by  reason  lean  war  pension- 
of  any  injury  received  or  disease  contracted  under  the  cir-    Mar.  3, 1373,  c. 

,,  .  ,     „      .,      ,   .  .,  IT,!  ,  .,,      ,  234,  s.  18,  v.  17,  p. 

cumstauces  therein  set  iorth,  his  widow  shall  be  entitled  572. 

to  receive  the  same  pension  as  the  husband  would  have    !5ec*4731>R>s' 

been  entitled  to  had  he  been  totally  disabled;  and  in  case 

of  her  death  or  remarriage,  the  child  or  children  of  such 

officer  or  other  person  referred  to  in  the  preceding  section, 

while  under  the  age  of  sixteen  years,  shall  be  entitled  to 

receive  the  pension.    But  the  rate  of  pension  prescribed 

by  this  and  the  preceding  section  shall  be  varied  after  the 

twenty-fifth  day  of  July,  eighteen  hundred  and  sixty-six  in 

accordance  with  the  provisions  of  section  four  thousand 

seven  hundred  and  twelve  of  this  Title.1 

PENSIONS  FOR  INDIAN  WARS. 

1635.  That  the  Secretary  of  the  Interior  be,  and  he  is    Indian  wara 
hereby,  authorized  and  directed  to  place  on  the  pension  p™nB?on82'f or 
roll  the  names  of  the  surviving  officers  and  enlisted  men,  ^JU^T!  1392,  v. 
including  marines,  militia,  and  volunteers  of  the  military27'1*'281 

and  naval  service  of  the  United  States,  who  served  for 
thirty  days  in  the  Black  Hawk  war,  the  Creek  war,  the 
Cherokee  disturbances,  or  the  Florida  war  with  the  Senii- 
nole  Indians,  embracing  a  period  from  eighteen  hundred  and 
thirty  two  to  eighteen  hundred  and  forty- two,  inclusive, 
and  were  honorably  discharged,  and  such  other  officers, 
soldiers,  and  sailors  as  may  have  been  personally  named  in 
any  resolution  of  Congress,  for  any  specific  service  in  said 
Indian  wars,  although  their  term  of  service  may  have  been 

!For  other  statutes  regulating  the  issue  of  pensions  for  services  rendered  during 
the  Mexican  war,  see  the  acts  of  January  29,  1887  (24  Stat.  L.,  371),  March  3,  1891  (26 
Stat.  L.,  1418),  January  5,  1893  (27  Stat  L.\  413),  and  January  23,  1893  (27  Stat,  L.,  421), 
and  March  2,  1895  (28  Stat.  L.,  814).  For  statutes  regulating  the  gran  ting  of  pen- 
sions for  services  in  the  war  of  1812,  see  sections  473G-4740,  Revised  Statutes. 


616  THE    MILITARY   LAWS   OF   THE   UNITED   STATES. 

widows.         iess  than  thirty  days,  and  the  surviving  widows  of  such 

Remarriage,    officers  and  enlisted  men:    Provided,   That  such  widows 

citizens.0"8  nothave  not  remarried:  Provided  further,  That  this  act  shall 

not  apply  to  any  person  not  a  citizen  of  the  United  States. 

Rate-  SEC.  2.  That  pensions  under  this  act  shall  be  at  the  rate 

of  eight  dollars  per  month,  and  payable  from  and  after  the 
passage  of  this  act,  for  and  during  the  natural  lives  of  the 
persons  entitled  thereto. 

Proof.  SEC.  3.  That  before  the  name  of  any  person  shall  be  placed 

on  the  pension  roll  under  this  act,  proof  shall  be  made, 
under  such  rules  and  regulations  as  the  Secretary  of  the 
Interior  may  prescribe,  of  the  right  of  the  applicant  to  a 

fa^e^wearin^P611^011'  anc^  an^  Person  wno  shall  falsely  and  corruptly 

etc.  'take  any  oath  required  under  this  act  shall  be  deemed 

guilty  of  perjury;  and  the  Secretary  of  the  Interior  shall 

cause  to  be  stricken  from  the  pension  roll  the  name  of  any 

person  whenever  it  shall  be  made  to  appear  by  proof  satis- 

factory to  him  that  such  name  was  put  upon  such  roll 

through  false  and  fraudulent  representations,  and  that  such 

LOSS  of  dis-  person  is  not  entitled  to  a  pension  under  this  act.     The  loss 

charge  certificate  x 

not  a  bar.  of  the  certificate  of  discharge  shall  not  deprive  any  person 
of  the  benefits  of  this  act,  but  other  evidence  of  service 
performed  and  of  an  honorable  discharge  may  be  deemed 
sufficient. 


certain0  BensJon°       ^E°'  ^'    ^aa^  ^n*S  aC^  SQa^   n°t  aPPly  *O  any  peiSOU  who 

ers  is  receiving  a  pension  at  the  rate  of  eight  dollars  per  month 

or  more,  nor  to  any  person  receiving  a  pension  of  less  than 
eight  dollars  per  month,  except  for  the  difference  between 
the  pension  now  received  (if  less  than  eight  dollars  per 
month)  and  eight  dollars  per  month. 
Pension  laws     SEC.  5.  That  the  pension  laws  now  in  force,  which  are 

applicable. 

not  inconsistent  or  in  conflict  with  this  act,  are  hereby  made 
a  part  of  this  act,  so  far  as  they  may  be  applicable  thereto.1 
,  B.  s.  SEC>  6>  Tuat  secti011  forty-seven  hundred  and  sixteen  of 
the  Revised  Statutes  is  hereby  repealed,  so  far  as  the  same 
relates  to  this  act  or  to  pensioners  under  this  act.2  Act  of 
July  27,  1892  (27  Stat.  L.,  281). 

1  For  proof  of  citizenship  under  this  act  see  the  act  of  February  3,  1893  (27  Stat.  L., 
429). 

2  Indian  wars  prior  to  March  4,  1861.—  For  statutes  granting  pensions  for  services 
in  Indian  wars  prior  to  March  4,  1861,  see  the  acts  of  January  2,  1812  (2  Stat.  L., 
670),  April  10,  1812  (2  Stat.  L.,  705),  June  15,  1832  (4  Stat.  L.,  533),  May  23,  1836  (5 
Stat.  L.,  33),  March  9,  1878  (20  Stat.  L.,  28),  July  27,  1892  (27  Stat.  L.,  281),  and  sections 
1656,  1657,  4712,  4725,  4726,  4727,  and  4732,  Revised  Statutes. 

Revolutionary  pensions.  —  For  statutes  granting  pensions  for  services  in  the  war  of 
the  Revolution,  see  the  acts  of  April  10,  1806  (2  Stat.  L.,  376),  April  25,  1812  (2  Stat. 
L.,  719),  March  18,  1818  (3  Stat.  L.,  410),  May  15,  1820  (3  Stat.  L.,  597),  February  4,  1822 
(3  Stat.  L.,  650),  March  1,  1823  (3  Stat.  L.,  787),  May  15,  1828  (4  Stat.L.,  269),  May  31, 
1830  (4  Stat.  L.,  426),  June  7,  1832  (4  Stat.  L.,  529),  July  14,  1832  (4  Stat.  L.,  529),  Feb- 
ruary 19,  1833  (4  Stat.  L.,  612),  July  4,  1836  (5  Stat.  L.,  128),  March  3,  1837  (5  Stat.  L., 
187),  February  2,  1848  (9  Stat  L.,  210),  July  29,  1848  (9  Stat.  L.,  266),  February  3,  1853 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  617 


1636.  The  widows  and  children  under  sixteen  years 

age  of  the  officers,  non-commissioned  officers,  musicians  f^ers  of  war  of 

*  1812,  and  Indian. 

and  privates  of  the  regulars,  militia,  and  volunteers  of  wars. 

Feb.  14,  1871,  c. 

the  Avar  of  one  thousand  eight  hundred  and  twelve  and  the5o,v.i6,P.4ii. 

.      Sec.i732,K.S. 

various  Indian  wars  since  one  thousand  seven  hundred  and 
ninety  who  remained  at  the  date  of  their  death  in  the  mili- 
tary service  of  the  United  States,  or  who  received  an  honor- 
able discharge  and  have  died  or  shall  hereafter  die  of  injury 
received  or  disease  contracted  in  the  service  and  in  the  line 
of  duty  shall  be  entitled  to  receive  half  the  monthly  pay  to 
which  the  deceased  was  entitled  at  the  time  he  received  the 
injury  or  contracted  the  disease  which  resulted  in  his  death. 
But  no  half-pay  pension  shall  exceed  the  half-pay  of  a  lieu- 
tenant-colonel and  such  half-pay  pension  shall  be  varied 
after  the  twenty-  fifth  day  of  July  one  thousand  eight  hun- 
dred and  sixty-six  in  accordance  with  the  provisions  of 
section  four  thousand  seven  hundred  and  twelve  of  this 
Title. 

THE   DEPENDENT   PENSION   LAW. 

1637.  That  all  persons  who  served  ninety  days  or  more  .lnv,ali*  ^?nj 

17          '  sions  to  disabled 

in  the  military  or  naval  service  of  the  United  States  during 


the  late  war  of  the  rebellion  and  who  have  been  honorably  ninety  days  in 

war  of  rebellion. 

discharged  therefrom,  and  who  are  now  or  who  may  here-    sec.2,june  27, 

after  be  suffering  from  a  mental  or  physical  disability  of  a 

permanent  character,  not  the  result  of  their  own  vicious 

habits,  which  incapacitates  them  from  the  performance  of 

manual  labor  in  such  a  degree  as  to  render  them  unable  to 

earn  a  support,  shall,  upon  making  due  proof  of  the  fact    DUO  proof,  etc. 

according  to  such  rules  and  regulations  as  the  Secretary 

of  the  Interior  may  provide,  be  placed  upon  the  list  of 

invalid  pensioners  of  the  United  States,  and  be  entitled  to 

receive  a  pension  not  exceeding  twelve  dollars  per  month,    Maximum  and 

'  minimum     pen- 

and  not  less  than  six  dollars  per  month,  proportioned  to  8i°?- 

Proportion  ate 

the  degree  of  inability  to  earn  a  support-  and  such  pension  inability. 
shall  commence  from  the  date  of  the  filing  of  the  applic 
tiou  in  the  Pension  Office,  after  the  passage  of  this  act  upon 
proof  that  the  disability  then  existed,  and  shall  continue 
during  the  existence  of  the  same:  Provided,  That  persons 
who  are  now  receiving  pensions  under  existing  laws,  or 
whose  claims  are  pending  in  the  Pension  Office,  may,  by 
application  to  the  Commissioner  of  Pensions,  in  such  form 
as  he  may  prescribe,  showing  themselves  entitled  thereto, 

(lOStat.L.,  154),  February  28.  1855  (10  Stat.  L.,  616),  March  9,  1878  (20  Stat.  L.,  29), 
March  19,  1886  (24  Stat.  L.,  5),  and  sections  4716  and  4743,  Revised  Statutes. 

War  of  1812.—  For  statutes  granting  pensions  for  services  in  the  war  of  1812,  see  the 
acts  of  January  11,  1812  (2  Stat.  L.,  673),  February  6,  1812  (2  Stat.  L.,  677),  August  2, 
1813  (3  Stat.  L.,  74),  AprillG,  1816  (3  Stat.  L.,  286),  April  4,  1842  (5  Stat.  L.,  473),  March 
9,  1878  (20  Stat.  L.,  27),  March  19,  1886  (24  Stat.  L.,  5),  and  sections  4712,  4713,  4732, 
4737,4738,  4739,  and  4740,  Revised  Statutes. 


618  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

receive  the  benefits  of  this  act  5  and  nothing  herein  con- 
Pensioners  en-  tained  shall  be  so  construed  as  to  prevent  any  pensioner 

titled  under  this  .     . 

or  other  acts  not  thereunder  from  prosecuting  his  claim  and  receiving  his 

barred  from  fur-  .  .    ,  r>          •  7     7 

ther  benefits,      pension  under  any  other  general  or  special  act  :  Provided, 
only  ^?mPen-  however,  That  no  person  shall  receive  more  than  one  pen- 
sion for  the  same  period  :  And  provided  further,  That  rank 
in  the  service  shall  not  be  considered  in  applications  filed 
under  this  act.     Sec.  2,  act  of  June  27,  1890  (26  Stat.  L.,  182). 
1638>  Tnat  if  any  offlcer  or  enlisted  man  who   served 
chsecT'ibid       ninety  days  or  more  in  the  Army  or  Navy  of  the  United 
States  during  the  late  war  of  the  rebellion,  and  who  was 
honorably  discharged  has  died,  or  shall  hereafter  die,  leav- 
widow.          ing  a  widow  without  other  means  of  support  than  her  daily 
Minor  children,  labor,  or  minor  children  under  the  age  of  sixteen  years, 
Proof  of  hus-  such  widow  shall,  upon  due  proof  of  her  husband's  death, 
without  proving  his  death  to  be  the  result  of  his  army 
service,  be  placed  on  the  pension-roll  from  the  date  of  the 
Rate  during  application  therefor  under  this  act,  at  the  rate  of  eight  dol- 
lars per  month  during  her  widowhood,  and  shall  also  be 
Rate  for  each  paid  two  dollars  per  month  for  each  child  of  such  officer  or 
enlisted  man  under  sixteen  years  of  age,  and  in  case  of  the 
Death  or  reraar-  death  or  remarriage  of  the  widow,  leaving  a  child  or  chil- 
dren of  such  officer  or  enlisted  man  under  the  age  of  six- 
teen years,  such  pension  shall  be  paid  such  child  or  children 
Continuing  until  the  age  of  sixteen:  Provided,  That  in  case  a  minor 

pension  to  minor    ,  ,  ,  -     .  .  .  .  ,      ,      ,     . 

child  during  per-  child  is  insane,  idiotic,  or  otherwise  permanently  helpless, 
Sty"6  '  the  pension  shall  continue  during  the  life  of  said  child,  or 

to  during  the  period  of  such  disability,  arid  this  proviso  shall 


apply  to  all  pensions  heretofore  granted  or  hereafter  to  be 
granted  under  this  or  any  former  statute,  and  such  pen- 
>-  sions  shall  commence  from  the  date  of  application  therefor 
after  the  passage  of  this  act:  And  provided  further,  That 
Limitastotime  said  widow  shall  have  married  said  soldier  prior  to  the 

of  marriage 

passage  of  this  act.     Sec.  3,  act  of  June  27,  1890  (2C>  Stat. 
L.,  182). 

1639,  That  no  agent,  attorney,  or  other  person  engaged 
in  preparing,  presenting,  or  prosecuting  any  claim  under 
the  provisions  of  this  act  shall,  directly  or  indirectly,  con- 
tract for,  demand,  receive,  or  retain  for  such  services  in 
preparing,  presenting,  or  prosecuting  such  claim  a  sum 
Maximum  fee.  greater  than  ten  dollars,  which  sum  shall  be  payable  only 
upon  the  order  of  the  Commissioner  of  Pensions,  by  the 
pension  agent  making  payment  of  the  pension  allowed, 


wron°fuiti0withr  an^  any  Person  wno  snall  violate  any  of  the  provisions  of 
holding  a  misde-  this  section,  or  who  shall  wrongfully  withhold  from  a  pen- 

demeanor. 

sioner  or  claimant  the  whole  or  any  part  of  a  pension  or 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  619 

claim  allowed  or  due  such  pensioner  or  claimant  under  this 
act,  shall  be  deemed  guilty  of  a  misdemeanor,  and  upon 
conviction  thereof  shall,  for  each  and  every  such  offence,  be 
fined  not  exceeding  five  hundred  dollars,  or  be  imprisoned  Penalty. 
at  hard  labor  not  exceeding  two  years,  or  both,  in  the  dis- 
cretion of  the  court.1  Sec.  4,  act  of  June  27,  1890  (26  Stat. 
L.,  183). 

1640.  That  whenever  a  claim  for  pension  under  the  Act  .  Pensions  to 

date  of  original 

of  June  twenty-seventh,  eighteen  hundred  and  ninety,  has  application. 
been,  or  shall  hereafter  be,  rejected,  suspended,  or  dis-29,p.45.  ' 
missed,  and  a  new  application  shall  have  been,  or  shall 
hereafter  be,  filed,  and  a  pension  has  been,  or  shall  here- 
after be,  allowed  in  such  claim,  such  pension  shall  date 
from  the  time  of  filing  the  first  application,  provided  the 
evidence  in  the  case  shall  show  a  pensionable  disability  to 
have  existed,  or  to  exist,  at  the  time  of  filing  such  first 
application,  anything  in  any  law  or  ruling  of  the  Depart- 
ment to  the  contrary  notwithstanding.  Act  of  March  6, 
1896  (29  Stat.  L.,  45). 

PENSIONS  TO   ARMY  NURSES. 

1641.  That  all  women  employed  by  the  Surgeon  General    Army  nurses 

to   receive    pen- 


of  the  Army  as  nurses,  under  contract  or  otherwise,  during  ^  ^^  ^ 
the  late  war  of  the  rebellion,  or  who  were  employed  as  27,  p.  348. 
nurses  during  such  period  by  authority  which  is  recognized 
by  the  War  Department,  and  who  rendered  actual  service 
as  nurses  in  attendance  upon  the  sick  or  wounded  in  any 
regimental,  post,  camp,  or  general  hospital  of  the  armies 
of  the  United  States  for  a  period  of  six  months  or  more, 
and  who  were  honorably  relieved  from  such  service,  and 
who  are  now  or  may  hereafter  be  unable  to  earn  a  support, 
shall,  upon  making  due  proof  of  the  fact  according  to  such 
rules  and  regulations  as  the  Secretary  of  the  Interior  may 
provide,  be  placed  upon  the  list  of  pensioners  of  the  United 
States  and  be  entitled  to  receive  a  pension  of  twelve  dollars  Rate. 
per  month,  and  such  pension  shall  commence  from  the  date 
of  filing  of  the  application  in  the  Pension  Office  after  the 
passage  of  this  act:  Provided,  That  no  person  shall  receive 


more  than  one  pension  for  the  same  period.     Act  of  August™ 
5,  1892  (27  Stat.  L.,  348). 

1642.  That  no  fee,  compensation,  or  allowance  shall  be    N°   {ee  to 

agent,  etc. 

paid  to,  received,  or  accepted  by  any  agent,  attorney,  or    sec.  2,  Au^95> 
other  person  instrumental  in  the  prosecution  of  any  claim 


for  pension  under  this  act  5  and  any  person  who  may  make  ol2£J*J*y  for 

^he  provisions  of  this  statute  were  extended  to  certain  individuals  who  served  in 
the  Missouri  militia  by  joint  resolution  No.  13  of  February  15,  1895  (28  Stat.  L.,  970). 


620      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

any  claim  upon  any  applicant  for  any  fee,  compensation,  or 
allowance  shall  be  guilty  of  a  misdemeanor,  and  upon  con- 
viction shall  be  fined  not  exceeding  five  hundred  dollars, 
or  imprisoned  at  hard  labor  not  exceeding  one  year,  or  both, 
in  the  discretion  of  the  court 5  and  it  shall  be  the  duty  of 
the  Interior  and  War  Departments  to  render  all  proper  aid 
to  applicants  under  this  act.  Sec.  2,  act  of  August  5,  1892 
(27  Stat.  L.7  349). 

COMMENCEMENT   OF   TENSIONS — ARREARS   OF   PENSIONS.1 

Commence      1643.  That  all  pensions  which  have  been  granted  under 

sec.  i,  Jan.  25,  the  general  laws  regulating  pensions,  or  may  hereafter  be 
granted,  in  consequence  of  death  from  a  cause  which  origi- 
nated in  the  United  States  service  during  the  continuance 
of  the  late  war  of  the  rebellion,  or  in  consequence  of 
wounds,  injuries,  or  disease  received  or  contracted  in  said 
service  during  said  war  of  the  rebellion,  shall  commence 
from  the  date  of  fche  death  or  discharge  from  said  service 
of  the  person  on  whose  account  the  claim  has  been  or  shall 
hereafter  be  granted,  or  from  the  termination  of  the  right 

Rate.  of  the  party  having  prior  title  to  such  pension :  Provided, 

The  rate  of  pension  for  the  intervening  time  for  which 
arrears  of  pension  are  hereby  granted  shall  be  the  same  per 
month  for  which  the  pension  was  originally  granted.3  Sec. 
1,  act  of  January  25,  1879  (20  Stat.  L.,  265). 

MarTi879  v  1644.  That  section  one  of  the  act  of  January  twenty  - 
20, p.  470.'  fifth,  eighteen  hundred  and  seventy-nine,  granting  arrears 

of  pensions  shall  be  construed  to  extend  to  and  include 
pensions  on  account  of  soldiers  who  were  enlisted  or  drafted 
for  the  service  in  the  war  of  the  rebellion,  but  died  or  in- 
curred disability  from  a  cause  originating  after  the  cessation 
of  hostilities;  and  before  being  mustered  out:  Provided, 
That  in  no  case  shall  arrears  of  pensions  be  allowed  and 
paid  from  a  time  prior  to  the  date  of  actual  disability.  Act 
of  March  3,  1879  (20  Stat.  £.,  470). 

Kf  ai879rv  1645i  Tnat  tne  rate  at  wnicn  tne  arrears  of  invalid  pen- 
20,  p. 470.  sions  shall  be  allowed  and  computed  in  the  cases  which 

have  been  or  shall  hereafter  be  allowed  shall  be  graded 
according  to  the  degree  of  the  pensioners  disability  from 
time  to  time  and  the  provisions  of  the  pension  laws  in  force 
over  the  period  for  which  the  arrears  shall  be  computed. 
Act  of  March  3, 1879  (20  Stat  £.,  470). 

lection  2  of  the  above  stat'ute  authorizes  the  Secretary  of  the  Interior  to  "adopt 
such  rules  and  regulations  for  the  payment  of  the  arrears  of  pensions  hereby 
granted  as  will  be  necessary  to  cause  to  be  paid  to  such  pensioners,  or  if  the  pen- 
sioners shall  have  died,  to  the  person  or  persons  entitled  to  the  same,  all  such  arrears 
of  pension  as  the  pensioner  may  be,  or  would  have  been,  entitled  to  under  this  act." 

2  For  statutory  provisions  respecting  unclaimed  pensions  of  decedents,  see  para- 
graphs 1714  and  1715,  post. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  621 

1646.  All  pensions  which  have  been,  or  which  may  here-    Dato  of  com- 

menceraent. 

after  be,  granted  in  consequence  of  death  occurring  from  Sec.  2,  ibid. 
a  cause  which  originated  in  the  service  since  the  fourth 
day  of  March,  eighteen  hundred  and  sixty-one,  or  in  con- 
sequence of  wounds  or  injuries  received  or  disease  con- 
tracted since  that  date  shall  commence  from  the  death  or 
discharge  of  the  person  on  whose  account  the  claim  has 
been  or  is  hereafter  granted  if  the  disability  occurred  prior 
to  discharge,  and  if  such  disability  occurred  after  the  dis- 
charge then  from  the  date  of  actual  disability  or  from  the 
termination  of  the  right  of  party  having  prior  title^  to  such 
pension:  Provided,  The  application  for  such  pension  has  Limitation, 
been  or  is  hereafter  filed  with  the  Commissioner  of  Pensions 
prior  to  the  first  day  of  July  eighteen  hundred  and  eighty, 
otherwise  the  pension  shall  commence  from  the  date  of 
filing  the  application;  but  the  limitation  herein  prescribed 
shall  not  apply  to  claims  by  or  in  behalf  of  insane  persons 
and  children  under  sixteen  years  of  age.  8ec.  2,  ibid. 

1647.  That  hereafter  no  agent  or  attorney  shall  demand,  ^^^"pen1 
receive,  or  be  allowed  any  compensation  under  existing  law  aity  for  taking  n- 

J  legal  fee.    Pend- 

exceeding  two  dollars  in  any  claim  for  increase  of  pension  ™s  contracts. 
on  account  of  the  increase  of  the  disability  for  which  the  26,  p.  ibsi 
pension  has  been  allowed,  or  for  services  rendered  in 
securing  the  passage  of  any  special  act  of  Congress  grant- 
ing a  pension  or  an  increase  of  pension  in  any  case  that 
has  been  presented  at  the  Pension  Office  or  is  allowable 
under  the  general  pension  laws:  And  provided  further, 
That  any  agent,  attorney,  or  other  person  instrumental  in 
prosecuting  any  claim  for  increase  of  pension  on  account  of 
the  increase  of  disability  for  which  pension  was  allowed, 
or  who  has  rendered  services  in  procuring  the  passage  of 
any  special  act  of  Congress  granting  a  pension  or  an 
increase  of  pension  in  any  case  that  has  been  presented  at 
the  Pension  Office  or  is  allowable  under  the  general  pension 
laws,  who  shall  directly  or  indirectly  contract  for,  demand, 
receive,  or  retain  any  compensation  for  such  services,  except 
as  hereinbefore  provided,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  upon  conviction  thereof  shall,  for  each  and 
every  such  offense,  be  fined  not  exceeding  five  hundred 
dollars  or  imprisoned,  not  exceeding  two  years  or  both,  in 
the  discretion  of  the  court:  Provided,  however.  That  the 
foregoing  provisions  in  relation  to  fees  of  agents  or  attor- 
neys shall  not  apply  to  any  case  now  pending  where  there 
is  an  existing  lawful  contract  express  or  implied.  Act  of 
March  3,  1895  (26  Stat.  L.,  1082}. 

1648.  It  shall  be  the  duty  of  the  Commissioner  of  Pen-    Arrears  of  pen- 

sion. 
sions,  upon  any  application  by  letter  or  otherwise  by  or  on   sec.  4711,  R.S. 


622  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

behalf  of  any  pensioner  entitled  to  arrears  of  pension  un- 
der section  forty-seven  hundred  and  nine,1  or  if  any  such 
pensioner  has  died,  upon  a  similar  application  by  or  on 
behalf  of  any  person  entitled  to  receive  the  accrued  pen- 
sion due  such  pensioner  at  his  death,  to  pay  or  cause  to  be 
paid  to  such  pensioner,  or  other  person,  all  such  arrears 
of  pension  as  the  pensioner  may  be  entitled  to,  or,  if  dead, 
would  have  been  entitled  to  under  the  provisions  of  that 
section  had  he  survived 5  and  no  claim-agent  or  other  per- 
son shall  be  entitled  to  receive  any  compensation  for  serv- 
ices in  making  application  for  arrears  of  pension. 
NO  fees  to  claim  1649.  No  claim  agent  or  other  person  shall  be  entitled  to 

ag!ec.\  Jan.  25,  receive  any  compensation  for  services  in  making  applica- 
"'  tion  for  arrears  of  pension.     Sec.  4,  act  of  January  25,  1879 

(20  Stat.  L.,  265}. 
Provisions  of     1650.  The  provisions  of  this  Title  in  respect  to  the  rates 

tendednetacWS '  * "  of  pension  to  persons  whose  right  accrued  since  the  fourth 
sec.  4712,  B.s.^y  of  Ma,rch?  eighteen  hundred  and  sixty-one,  are  ex- 
tended to  pensioners  whose  right  to  pension  accrued  under 
general  acts  passed  since  the  war  of  the  Eevolution  and 
prior  to  the  fourth  day  of  March,  eighteen  hundred  and 
sixty-one,  to  take  effect  from  and  after  the  twenty-fifth  day 
of  July,  eighteen  hundred  and  sixty-six;  and  the  widows 
of  revolutionary  soldiers  and  sailors  receiving  a  less  sum 
shall  be  paid  at  the  rate  of  eight  dollars  per  month  from 
and  after  the  twenty- seventh  day  of  July,  eighteen  hun- 
dred and  sixty- eight.2 
Certain  re-  1651.  That  section  three  of  an  act  entitled  "An  act  in- 

restored?  *        creasing  the  pensions  of  widows  and  orphans,  and  for  other 

2ifp,ni7o.'  188°'  v>  purposes  w,  approved  July  twenty-fifth,  eighteen  hundred 
and  sixty-six,  and  section  thirteen  of  an  act  entitled  "An 
act  relatiag  to  pensions",  approved  July  twenty-seventh, 
eighteen  hundred  and  sixty-eight,  and  section  forty-seven 
hundred  and  twelve  of  the  Eevised  Statutes,  shall  not 
operate  to  reduce  the  rate  of  any  pension  which  had  ac- 
tually been  allowed  to  the  commissioned,  non-commissioned, 
or  petty  officers  of  the  Navy  or  their  widows  or  minor  chil- 
dren, prior  to  the  twenty-fifth  day  of  July,  eighteen  hun- 
dred and  sixty-six;  and  the  Secretary  of  the  Interior  is 
hereby  directed  to  restore  all  such  pensions  as  have  already 
been  so  reduced  to  the  rate  originally  granted  and  allowed, 
to  take  effect  from  the  date  of  such  reduction.  Act  of 
June  9,  1880  (21  Stat.  L.,  170). 
commence-  1652.  In  all  cases  in  which  the  cause  of  disability  or 

nicD  t  of  pensions 

for  prior  wars,    death  originated  in  the  service  prior  to  the  fourth  day  of 

Sec.  4713,  B.  S. ____^______  

1  The  section  above  referred  to  is  section  4709,  Eevised  Statutes,  which  was  re- 
pealed by  the  act  of  March  3, 1879  (20  Stat.  L.,  479). 

2  Amended  by  act  of  June  9,  1880  (21  Stat.  L.,  170),  which  provides  that  this  section 
shall  not  operate  to  reduce  pensions  already  granted.    See  paragraph  1651,  post. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  623 

March,  eighteen  hundred  and  sixty-one,  and  an  applica- 
tion for  pension  shall  not  have  been  filed  within  three 
years  from  the  discharge  or  death  of  the  person  on  whose 
account  the  claim  is  made,  or  within  three  years  of  the 
termination  of  a  pension  previously  granted  on  account  of 
the  service  and  death  of  the  same  person,  the  pension  shall 
commence  from  the  date  of  filing  by  the  party  prosecuting 
the  claim  the  last  paper  requisite  to  establish  the  same. 
But  no  claim  allowed  prior  to  the  sixth  day  of  June,  eight- 
een hundred  and  sixty-six,  shall  be  affected  by  anything 
herein  contained. 

REMOVAL   OF  LIMITATION. 

1653.  That  section  forty-seven  hundred  and  seventeen  of  Limitation  to 

prosecution  or 

the  Revised  Statutes  of  the  United  States,  which  provides  Pension  claims 

removed. 

that  "no  claim  for  pension  not  prosecuted  to  a  successful  s^  3,  Jan .25, 
issue  within  five  years  from  the  date  of  filing  the  same 
shall  be  admitted  without  record  evidence  from  the  War  or 
Navy  Department  of  the  injury  or  the  disease  which  resulted 
in  the  disability  or  death  of  the  person  on  whose  account 
the  claim  is  made:  Provided,  That  in  any  case  in  which  the 
limitation  prescribed  by  this  section  bars  the  further  prose- 
cution of  the  claim,  the  claimant  may  present,  through  the 
Pension  Office,  to  the  Adjutant-General  of  the  Army  or  the 
Surgeon-General  of  the  Navy,  evidence  that  the  disease  or 
injury  which  resulted  in  the  disability  or  death  of  the 
person  on  whose  account  the  claim  is  made  originated  in 
the  service  and  in  the  line  of  duty,  and  if  such  evidence  is 
deemed  satisfactory  by  the  officer  to  whom  it  may  be  sub- 
mitted, he  shall  cause  a  record  of  the  fact  so  proved  to  be 
made,  and  a  copy  of  the  same  to  be  transmitted  to  the 
Commissioner  of  Pensions,  and  the  bar  to  the  prosecution 
of  the  claim  shall  thereby  be  removed,"  be,  and  the  same  is 
hereby  repealed.1  Sec.  5,  act  of  January  25,  1879  (20  Stat. 
L.,  265). 

MEMBERS  OF  CONGRESS  AND  OFFICERS  AND  CLERKS  OF 
THE  UNITED  STATES  NOT  TO  BE  INTERESTED  IN  THE 
PROSECUTION  OF  CLAIMS. 

1654.  No  Senator,  Representative,  or  Delegate,  after  his    ^p°n  taking 

.       ,.  n    ,       .         ,  .  ,  compensation  in 

election  and  during  his  continuance  in  office,  and  no  head  matters  to  which 
of  a  Department,  or  other  officer  or  clerk  in  the  employ  of  a  party, 
the  Government,  shall  receive  or  agree  to  receive  any  com-  ii9,™i3?p!m°' 
pensation  whatever,  directly  or  indirectly,  for  any  services 

1  Section  4721,  Eevised  Statutes,  prescribes  a  limitation  upon  the  operation  of  sec- 
tions 4709  and  4710,  and  4717,  the  former  of  which  were  repealed  by  the  act  of  March  3, 
1879  (20  Stat.  L.,  469),  and  the  latter  by  the  act  of  January  20,  1879  (20  Stat.  L.,  65). 


624      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

rendered,  or  to  be  rendered,  to  any  person,  either  by  him- 
self or  another,  in  relation  to  any  proceeding,  contract, 
claim,  controversy,  charge,  accusation,  arrest,  or  other 
matter  or  thing  in  which  the  United  States  is  a  party,  or 
directly  or  indirectly  interested,  before  any  Department, 
court-martial,  Bureau,  officer,  or  any  civil,  military,  or 
naval  commission  whatever.  Every  person  offending 
against  this  section  shall  be  deemed  guilty  of  a  misde- 
meanor, and  shall  be  imprisoned  not  more  than  two  years, 
and  fined  not  more  than  ten  thousand  dollars,  and  shall, 
moreover,  by  conviction  therefor,  be  rendered  forever 
thereafter  incapable  of  holding  any  office  of  honor,  trust, 
or  profit  under  the  Government  of  the  United  States. 

DECLARATIONS  AND  EVIDENCE  IN  PENSION  CASES. 

Penalty  for     1655.  Every  person  who  knowingly  or  willfully  in  any- 
false    affidavit  .. 

and  postdating  wise  procures  the  making  or  presentation  of  any  false  or 

vouchers,  etc.  .  ,     .  _ 

Sec. 4746, B.S.  fraudulent  affidavit  concerning  any  claim  for  pension, 
or  payment  thereof,  or  pertaining  to  any  other  matter 
within  the  jurisdiction  of  the  Commissioner  of  Pensions, 
or  who  knowingly  or  willfully  presents  or  causes  to  be 
presented  at  any  pension -agency  any  power  of  attorney  or 
other  paper  required  as  a  voucher  in  drawing  a  pension, 
which  paper  bears  a  date  subsequent  to  that  on  which  it 
was  actually  signed  or  executed,  shall  be  punished  by  a 
fine  not  exceeding  five  hundred  dollars,  or  by  imprisonment 
for  a  term  not  exceeding  three  years,  or  by  both. 

Declarations m  1656.  That  declarations  of  pension  claimants  shall  be 
pesec°i!  cjuly  26,  made  before  a  court  of  record,  or  before  some  officer  thereof 
l'  having  custody  of  its  seal,  or  before  some  officer  who,  under 
the  laws  of  his  State,  city,  or  county,  has  authority  to  ad- 
minister oaths  for  general  purposes;  and  said  officers  are 
hereby  fully  authorized  and  empowered  to  administer  and 
certify  any  oath  or  affirmation  relating  to  any  pension  or 
application  therefor :  Provided,  That  where  such  declaration 
or  other  papers  are  executed  before  an  officer  authorized 
as  above  but  not  required  by  the  laws  of  his  State  to 
have  and  use  a  seal  to  authenticate  his  official  acts,  he 
shall  file  in  the  Pension  Bureau  a  certificate  of  his  official 
character,  showing  his  official  signature  and  term  of  office, 
certified  by  a  clerk  of  a  court  of  record  or  other  proper 
officer  of  the  State  as  to  the  genuineness  thereof;  and  when 
said  certificate  has  been  filed  in  the  Bureau  of  Pensions  his 
own  certificate  will  be  recognized  during  his  term  of  office.1 
Sec.  1,  act  of  July  26,  1892  (27  Stat.  L.,  272). 

1  See  also  section  1778,  Revised  Statutes. 


THE   MILITARY   LAWS    OF   THE    UNITED    STATES.  625 

1657.  That  the  Commissioner  of  Pensions  may  accept    Declarations 

»  made  in  foreign 

declarations  and  other  papers  of  claimants  residing  in  for-  C0g°ctr2ejul   26 

eign  countries  made  before  a  United  States  minister  or  1892,  V.  27,  p.  272! 

consul  or  other  consular  officer,  or  before  some  officer  of 

the  country  duly  authorized  to  administer  oaths  for  general 

purposes,  and  whose  official  character  and  signature  shall 

be  duly  authenticated  by  the  certificate  of  a  United  States 

minister  or  consul  or  other  consular  officer  5  and  declara-    Declarations  of 

tions  in  claims  of  Indians,  may  be  made  before  a  United 

States  Indian  agent.     Sec.  2,  act  of  July  26,  ±892  (27  Stat. 

L.,  272). 

1658.  That  the  Commissioner  of  Pensions,  on  application  -^SSSSfv^L 
being  made  to  him  in  person,  or  by  letter,  by  any  claimant  ^lee  «?  Charge0118 
or  applicant  for  pension,  bounty-land,  or  other  allowance  57f6"*-'  8>  22>  p" 
required  bylaw  to  be  adjusted  or  paid  by  the  Pension-    sec.4748,R.s. 
Office,  shall  furnish  such  person,  free  of  all  expense,  all 

such  printed  instructions  and  forms  as  maybe  necessary  in 
establishing  and  obtaining  said  claim;  and  on  the  issuing 
of  a  certificate  of  pension  or  of  a  bounty-land  warrant,  he 
shall  forthwith  notify  the  claimant  or  applicant,  and  also 
the  agent  or  attorney  in  the  case,  if  there  be  one,  that  such 
certificate  has  been  issued,  or  allowance  made,  and  the  date 
and  amount  thereof. 


1659.  That  the  Commissioner  of  Pensions  be,  and  he  is    Residencetobe 

'  proof  of  citizen- 

hereby,  authorized  and  directed  to  accept  as  sufficient         in  certain 


proof  of  the  citizenship  of  an  applicant  for  pension  under  27reb4-2g'  1893>  v- 
said  act  of  July  twenty  -seventh,  eighteen  hundred  and 
ninety-  two,  the  fact  that  such  applicant  at  the  date  of  the 
application  was  an  actual  and  bona  fide  resident  of  the 
United  States.    Act  of  February  5,  1893  (27  Stat.  L.,  429). 

1660.  That  in  considering  claims  filed  under  the  pension    Proof  of  death. 
laws,  the  death  of  an  enlisted  man  or  officer  shall  be  con-  29,  p?57.  ' 
sidered  as  sufficiently  proved  if  satisfactory  evidence,  is 
produced  establishing  the  fact  of  the  continued  and  unex- 

plained absence  of  such  enlisted  man  or  officer  from  his 
home  and  family  for  a  period  of  seven  years,  during  which 
period  no  intelligence  of  his  existence  shall  have  been 
received.  And  any  pension  granted  under  this  Act  shall 
cease  upon  proof  that  such  officer  or  enlisted  man  is  still 
living.  Act  of  March  13,  1896  (29  Stat.  L.,  57). 

1661.  That  all  applicants  for  pensions  shall  be  presumed    Presumption 
to  have  had  no  disability  at  the  time  of  enlistment  ;  but  enlistment!  ltya 
such  presumption  may  be  rebutted.     Act  of  March  3,  1885  23!p?36i.'  1885>  v* 
(23  Stat.  L.,  361). 

1919  -  40 


626  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

Curing  defect-     1662.  That  any  and  all  declarations  or  affidavits  now  on 

ive  declarations, 

etc.  file  in  the  Pension  Bureau  which  are  considered  informal 

i892,°v.  27,  piW  by  reason  of  not  having  been  executed  in  conformity  to  the 
laws  heretofore  in  force  covering  such,  and  in  which  it  is 
shown  or  may  be  hereafter  shown  by  proper  evidence  that 
the  same  were  executed  by  and  before  an  officer  who  was 
duly  authorized  to  administer  oaths  for  general  purposes  at 
said  date  of  execution,  s^hall  be  accepted  as  formal  as  from 
date  of  filing  such  declarations  or  affidavits.  Sec.  3,  act  of 
July  26,  1892  (27  Stat.  L.,  272). 

indian^ciauns.  1663.  The  term  of  limitation  prescribed  by  sections  forty  - 
"  seven  hundred  and  nine  and  forty-seven  hundred  and  seven- 
teen shall,  in  pending  claims  of  Indians,  be  extended  to 
two  years  from  and  after  the  third  day  of  March,  eighteen 
hundred  and  seventy- three ;  all  proof  which  has  heretofore 
been  taken  before  an  Indian  agent,  or  before  an  officer  of 
any  tribe,  competent  according  to  the  rules  of  said  tribe  to 
administer  oaths,  shall  be  held  and  regarded  by  the  Pen- 
sion-Office, in  the  examining  and  determining  of  claims  of 
Indians  now  on  file,  as  of  the  same  validity  as  if  taken 
before  an  officer  recognized  by  the  law  at  the  time  as  com- 
petent to  administer  oaths ;  all  proof  wanting  in  said  claims 
hereafter,  as  well  as  in  those  filed  after  the  third  day  of 
March,  eighteen  hundred  and  seventy-three,  shall  be  taken 
before  the  agent  of  the  tribe  to  which  the  claimants  respec- 
tively belong ;  in  regard  to  dates,  all  applications  of  Indians 
now  on  file  shall  be  treated  as  though  they  were  made  before 
a  competent  officer  at  their  respective  dates,  and  if  found 
to  be  in  all  other  respects  conclusive,  they  shall  be  allowed; 
and  Indians  shall  be  exempted  from  the  obligation  to  take 
the  oath  to  support  the  Constitution  of  the  United  States.1 

ACCRUED  AND   UNCLAIMED  PENSIONS. 

Accrued  pen-  1664.  If  any  pensioner  has  died  or  shall  hereafter  die;  or 
Sec.  25,  Mar.  3,  ^  any  person  entitled  to  a  pension,  having  an  application 
18SecTm8,'it!s'.  therefor  pending,  has  died  or  shall  hereafter  die,  his  widow, 
or  if  there  is  no  widow,  the  child  or  children  of  such  person 
under  the  age  of  sixteen  years,  shall  be  entitled  to  receive 
the  accrued  pension  to  the  date  of  the  death  of  such  per- 
son. Such  accrued  pension  shall  not  be  considered  as  a 
part  of  the  assets  of  the  estate  of  deceased,  nor  liable  to  be 
applied  to  the  payment  of  the  debts  of  said  estate  in  any 
case  whatever,  but  shall  inure  to  the  sole  and  exclusive 
benefit  of  the  widow  or  children ;  and  if  no  widow  or  child 

1  Section  4717,  Revised  Statutes,  was  repealed  by  section  3  of  the  act  of  January  25, 
1879  (20  Stat.  L.,  265) ;  see  paragraph  1653,  ante. 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES.  627 

survive,  no  payment  whatsoever  of  the  accrued  pension  shall 
be  made  or  allowed,  except  so  much  as  may  be  necessary 
to  re-imburse  the  person  who  bore  the  expenses  of  the  last 
sickness  and  burial  of  the  decedent,  in  cases  where  he  did 
not  leave  sufficient  assets  to  meet  such  expenses.1 

1665.  That  from  and  after  the  twenty-eighth  day  of  Sep-  orJJJ™S^fna£ 
tember,  eighteen  hundred  and  ninety- two,  the  accrued  pen-  death  of  pension- 
sion  to  the  date  of  the  death  of  any  pensioner,  or  of  any 

person  entitled  to  a  pension  having  an  application  therefor 
pending,  and  whether  a  certificate  therefor  shall  issue  prior 
or  subsequent  to  the  death  of  such  person,  shall,  in  the  case 
of  a  person  pensioned,  or  applying  for  pension,  on  account 
of  his  disabilities  or  service,  be  paid,  first,  to  his  widow:  Distribution. 

,...,,  .  .,  ,f         '.,,  T-T-,  -,  Mar.  2,  1895,  v. 

second,  it  there  is  no  widow,  to  his  child  or  children  under  28,  p.  964. 

the  age  of  sixteen  years  at  his  death;  third,  in  case  of  a 

widow,  to  her  minor  children  under  the  age  of  sixteen  years 

at  her  death.     Such  accrued  pension  shall  not  be  consid-es^*  a88ets  of 

ered  a  part  of  the  assets  of  the  estate  of  such  deceased 

person,  nor  be  liable  for  the  payment  of  the  debts  of  said 

estate  in  any  case  whatsoever,  but  shall  inure  to  the  sole 

and  exclusive  benefit  of  the  widow  or  children.    And  if  no    Paymentof  ex- 

.  .  1-11  •  •  -i    •      ±1  npenses   of  last 

widow  or  child  survive  such  pensioner,  and  in  the  case  of  sickness,  etc. 
his  last  surviving  child  who  was  such  minor  at  his  death, 
and  in  case  of  a  dependent  mother,  father,  sister,  or  brother, 
no  payment  whatsoever  of  their  accrued  pension  shall  be 
made  or  allowed  except  so  much  as  may  be  necessary  to 
reimburse  the  person  who  bore  the  expense  of  their  last 
sickness  and  burial,  if  they  did  not  leave  sufficient  assets 
to  meet  such  expense.  And  the  mailing  of  a  pension  check, 
drawn  by  a  pension  agent  in  payment  of  a  pension  due,  to 
the  address  of  a  pensioner,  shall  constitute  payment  in  the 
event  of  the  death  of  a  pensioner  subsequent  to  the  execu- 
tion of  the  voucher  therefor.  And  all  prior  laws  relating 
to  the  payment  of  accrued  pension  are  hereby  repealed. 
Act  of  March  2,  1895  (28  Stat.  L.,  964). 

1666.  The  failure  of  any  pensioner  to  claim  his  or  her  pen-   unclaimed  pen- 
sion for  three  years  after  the  same  shall  have  become  dueslsec.'26,junei8, 
shall  be  deemed  presumptive  evidence  that  such  pension18st'cT4Vi9;B.4s. 
has  legally  terminated  by  reason  of  the  pensioner's  death, 
remarriage,  recovery  from  the  disability,  or  otherwise,  and 

the  pensioner's  name  shall  be  stricken  from  the  list  of  pen- 
sioners, subject  to  the  right  of  restoration  to  the  same  on 

JThe  act  of  June  3,  1884  (23  Stat.  L.,  35),  contains  the  requirement  "that  the  heirs 
or  legal  representatives  of  any  officer  whose  muster  into  the  service  has  been  or  shall 
be  amended  thereby  shall  be  entitled  to  receive  the  arrears  of  pay  due  such  officer, 
and  the  pension,  if  any,  authorized  by  law,  for  the  grade  into  which  such  officer  ia 
mustered  under  its  provisions."  See 'also  the  act  of  March  1 ,  3889  (25  Stat.  L.,  782). 


628  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

a  new  application  by  the  pensioner,  or,  if  the  pensioner  is 
dead,  by  the  widow  or  minor  children  entitled  to  receive 
the  accrued  pension,  accompanied  by  evidence  satisfactorily 
accounting  for  the  failure  to  claim  such  pension,  and  by 
medical  evidence  in  cases  of  invalids  who  were  not  exempt 
from  biennial  examinations  as  to  the  continuance  of  the 
disability. 

ATTORNEY'S  FEES. 

Fees  of  attor-     1667.  No  agent  or  attorney  or  other  person  shall  demand 

ney  for  prosecut- 
ing claims.         or  receive  any  other  compensation  for  his  services  in  pros- 

i884,Cv.23,Pu&>.  'ecuting  a  claim  for  pension  or  bounty  land  than  such  as 

}  '  '  the  Commissioner  of  Pensions  shall  direct  to  be  paid  to 

him,  not  exceeding  twenty-five  dollars;   nor  shall  such 

agent,  attorney  or  other  person  demand  or  receive  such 

compensation,  in  whole  or  in  part,  until  such  pension  or 

Proviso.         bounty-land  claim  shall  be  allowed :  Provided,  That  in  all 

claims  allowed  since  June  twentieth   eighteen  hundred 

and  seventy-eight  where  it  shall  appear  to  the  satisfaction 

Fees  not  paid  of  the  Commissioner  of  Pensions  that  the  fee  of  ten  dol- 

in  certain  cases,  ...  „   ,  ,  ,  .  ,     .         •,-,-, 

to  be  deducted  lars,  or  any  part  thereof,  has  not  been  paid,  he  shall  cause 
on*     the  same  to  be  deducted  from  the  pension,  and  the  pension 

agent  to  pay  the  same  to  the  recognized  attorney. 
an^unT™? "eefto     1668.  The  agent  or  attorney  of  record  in  the  prosecution 
be  filed.  of  the  case  may  cause  to  be  filed  with  the  Commissioner  of 

o.   4     July   4 

1884,  v.  23,  p. '99.   Pensions,  duplicate  articles  of  agreement,  without  addi- 

'  tional  cost  to  the  claimant,  setting  forth  the  fee  agreed 

upon  by  the  parties,  which  agreement  shall  be  executed  in 

the  presence  of  and  certified  by  some  officer  competent  to 

administer  oaths.    In  all  cases  where  application  is  made 

Fee  in  case  of  for  pension  or  bounty  land,  and  no  agreement  is  filed  with 

agreement0        the  Commissioner  as  herein  provided,  the  fee  shall  be  ten 

dollars  and  no  more.    And  such  articles  of  agreement  as 

may  hereafter  be  filed  with  the  Commissioner  of  Pensions 

Articles  of  are  not  authorized,  nor  will  they  be  recognized  except  in 

agreement,    etc.,     -../.  ...  .  ,    .          „  n 

recognized  in  cer- claims  for  original  pensions,  claims  for  increase  of  pension 

tain  claims  only.  -i  •      i  •  -i  •          •         i    •  /»  ±* 

on  account  of  a  new  disability,  in  claims  for  restoration 
where  a  pensioner's  name  has  been  or  mav  hereafter  be 
dropped  from  the  pension  rolls  on  testimony  taken  by  a 
special  examiner,  showing  that  the  disability  or  cause  of 
death,  on  account  of  which  the  pension  was  allowed,  did 
not  originate  in  the  line  of  duty,  and  in  cases  of  dependent 
relatives  whose  names  have  been  or  may  hereafter  be, 
dropped  from  the  rolls  on  like  testimony,  upon  the  ground 
of  non  dependence,  and  in  such  other  cases  of  difficulty 
and  trouble  as  the  Commissioner  of  Pensions  may  see  fit  to 


THE   MILITARY   LAWS   OF    THE    UNITED    STATES.  629 

recognize  them:  Provided,  That  no  greater  fee  than  ten    Proviso. 
dollars  shall  be  demanded,  received,  or  allowed  in  any  claim  la^ee^r  bounty 
for  pension  or  bounty  land  granted  by  special  act  of  Con- 
gress, nor  in  any  claim  for  increase  of  pension  on  account 
of  the  increase  of  the  disability  for  which  the  pension  had 
been  allowed:  And  provided  further ',  That  no  fee  shall  be 
demanded,  received,  or  allowed  in  any  claim  for  arrears  of   NO  fee  allowed 

for  arrears  oipeu- 

pension  or  arrears  of  increase  of  pension  allowed  by  anysion,etc. 
act  of  Congress  passed  subsequent  to  the  date  of  the 
allowance  of  the  original  claims  in  which  such  arrears  of 
pension,  or  of  increase  of  pension,  may  be  allowed. 

The  articles  of  agreement  herein  provided  for  shall  be  in 
substance  as  follows,  to  wit : 

ARTICLES  OF  AGREEMENT. 

Whereas  I, ,  late  a in  company ,  cl^ornjf  of' 

of  the regiment  of volunteers,  war  of  eighteen  ment. 

hundred  and  sixty-one  (or,  if  the  service  be  different,  here 
state  the  same),  having  made  application  for  pension  under 
the  laws  of  the  United  States : 

Now,  this  agreement  witnesseth,  that  for  and  in  consid- 
eration of  services  done  and  to  be  done  in  the  premises,  I 

hereby  agree  to  allow  my  attorney, of , 

the  fee  of dollars,  which  shall  include  all  amounts 

to  be  paid 'for  any  service  in  furtherance  of  said  claim ;  and 
said  fee  shall  not  be  demanded  by  or  payable  to  my  said 
attorney  (or  attorneys),  in  whole  or  in  part,  except  in  case 
of  the  granting  of  my  pension  by  the  Commissioner  of 
Pensions;  and  then  the  same  shall  be  paid  to  him  (or  them) 
in  accordance  with  the  provisions  of  sections  forty-seven 
hundred  and  sixty-eight  and  forty-seven  hundred  and  sixty- 
nine  of  the  Revised  Statutes. 

(Claimant's  signature.) 
(Two  witnesses'  signatures.) 
STATE  OF 


on 

County  of 

Be  it  known  that  on  this,  the day  of ,  anno 

Domini  eighteen    hundred  and  eighty  ,  personally 

appeared  the  above-named ,  who,  after  having 

had  read  over  to ,  in  the  hearing  and  presence  of  the 

two  attesting  witnesses,  the  contents  of  the  foregoing  arti- 
cles of  agreement,  voluntarily  signed  and  acknowledged 
the  same  to  be  — —  free  act  and  deed. 

(Official  signature.) 


630      THE  MILITARY  LAWS  OP  THE  UNITED  STATES. 

And  now,  to  wit,  this  -  day  of  —  —  ,  anno  Domini 
eighteen  hundred  and  eighty  -  ,  I  (or  we)  accept  the  pro- 
visions contained  in  the  foregoing  articles  of  agreement, 
and  will,  to  the  best  of  my  (or  our)  ability,  endeavor  faith- 
fully to  represent  the  interest  of  the  claimant  in  the  prem- 
ises. 

Witness  my  (or  our)  hand,  the  day  and  year  first  above 
written. 

(Signature  of  Attorney.) 
STATE  OF 
County  of 

Personally  came  --  ,  whom  I  know  to  be  the 
person  he  represents  himself  to  be,  and  who,  having  signed 
above  acceptance  of  agreement,  acknowledged  the  same  to 
be  -  free  act  and  deed. 

(Official  signature.) 


Amount  paid,  ^n(l  if  ^  the  adjudication  of  any  claim  for  pension  in 
d^cte<i°frobm  fedee  w^ich  such  articles  of  agreement  have  been,  or  may  here- 
after be,  filed,  it  shall  appear  that  the  claimant  had,  prior 
to  the  execution  thereof,  paid  to  the  attorney  any  sum  for 
his  services  in  such  claim,  and  the  amount  so  paid  is  not 
stipulated  therein,  then  every  such  claim  shall  be  adjudi- 
cated in  the  same  manner  as  though  no  articles  of  agree- 
ment had  been  filed,  deducting  from  the  fee  of  ten  dollars 
allowed  by  law  such  sum  as  claimant  shall  show  that  he 
has  paid  to  his  said  attorney. 

Penalty  for  Anv  agent  or  attorney  or  other  person  instrumental  in 
JeSting11  t°f  fees  prosecuting  any  claim  for  pension  or  bounty  land,  who  shall 
or  compensation,  directly  or  indirectly  contract  for,  demand  or  receive  or 
retain  any  greater  compensation  for  his  services  or  instru- 
mentality in  prosecuting  a  claim  for  pension  or  bounty  land 
than  is  herein  provided,  or  for  payment  thereof  at  any  other 
time  or  in  any  other  manner  than  is  herein  provided,  or 
who  shall  wrongfully  withhold  from  a  pensioner  or  claimant 
the  whole  or  any  part  of  the  pension  or  claim  allowed  and 
due  such  pensioner  or  claimant,  or  the  land  warrant  issued 
to  any  such  claimant,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  for  every  such 
offense  be  fined  not  exceeding  five  hundred  dollars,  or 
imprisoned  at  hard  labor  not  exceeding  two  years,  or  both, 
in  the  discretion  of  the  court.  Sec.  4,  act  of  July  5,  1884  (23 
Stat.  L.,  99). 

secretary  of     1669-  Tbat  the  Secretary  of  the  Interior  may  prescribe 

scrTbe0rru*eSpfoerrules  and  regulations  governing  the  recognition  of  agents, 

faints  m<etc    °n  attorneys,  or  other  persons  representing  claimants  before 

prosecution  of  his  department,  and  may  require  of  such  persons,  agents, 

sect's,  ibid,      and  attorneys,  before  being  recognized  as  representatives 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES.  031 

of  claimants,  that  they  shall  show  that  they  are  of  good 
moral  character  and  in  good  repute,  possessed  of  the  nec- 
essary qualifications  to  enable  them  to  render  such  claim- 
ants valuable  service,  and  otherwise  competent  to  advise 
and  assist  such  claimants  in  the  presentation  of  their  claims 
and  such  Secretary  may,  after  notice  and  opportunity  for  a 
hearing,  suspend  or  exclude  from  further  practice  before 
his  department  any  such  person,  agent  or  attorney  shown 
to  be  incompetent,  disreputable,  or  who  refuses  to  comply 
with  the  said  rules  and  regulations,  or  who  shall  with 
intent  to  defraud  in  any  manner  deceive,  mislead,  or 
threaten  any  claimant,  or  prospective  claimant,  by  word, 
circular,  letter,  or  by  advertisement.  Sec.  5,  ibid. 

1670.  The  Commissioner  shall  have  power,  subject  to  re-    commissioner 

,         . ,        ,-*  .  .of  Pensions  may 

view  by  the  Secretary,  to  reject  or  refuse  to  recognize  any  reject  contracts 
contract  for  fees,  herein  provided  for,  whenever  it  shall  be  °sec?MW& 
made  to  appear  that  any  undue  advantage  has  been  taken 
of  the  claimant  in  respect  to  such  contract.     Sec.  6,  ibid. 

1671.  That  the  act  entitled  "An  act  relating  to  claim    Attorneys' fees 

j       ,,  .  .  ..  ,     T  in  pension  cases ; 

agents  and  attorneys  in  pension  cases,"  approved  June  act  relating  to. 
twentieth,  eighteen  hundred  and  seventy -eight,  is  hereby repea 
repealed:  Provided  however,  That  the  rights  of  the  parties  .  July  4, 1884,  v. 
shall  not  be  abridged  or  aifected  as  to  contracts  in  pending 
cases,  as  provided  for  in  said  act ;  but  such  contracts  shall 
be  deemed  to  be  and  remain  in  full  force  and  virtue,  and 
shall  be  recognized  as  contemplated  by  said  act.    Act  of 
July  4,  1884  (23  Stat.  L.,  99). 

1672.  That  sections  forty-seven  hundred  and  sixty-eight,    Sections  4768, 

/»  i  i        i  -i        •     j  •  i/»  47o9,     (iiicl     4786, 

forty- seven  hundred  and  sixty-nine,  and  forty-seven  hun-  Revised  statutes, 

,       ,  ,.,.         .  _  , .        -T»«TO<^  made   applicable 

dred  and  eighty- six  of  the  Ee vised  Statutes  are  hereby  m  certain  cases, 
made  applicable  also  to  all  cases  hereafter  filed  with  the  is^Tv.lsfp^.4' 
Commissioner  of  Pensions,  and  to  all  cases  so  filed  since 
June  twentieth,  eighteen  hundred  and  seventy-eight,  and 
which  have  not  been  heretofore  allowed,  except  as  herein- 
after provided.     Sec.  2,  act  of  July  4,  1884  (23  Stat.  £.,  99). 

1673.  That  hereafter  no  agent  or  attorney  shall  demand,    Fee  for  in- 

'crease,    etc., 

receive,  or  be  allowed  any  compensation  under  existing  claims. 

&      Mar.  3,  1891,  v. 

law  exceeding  two  dollars  in  any  claim  for  increase  of  pen-  26,  p.  1032. 

sion  on  account  of  the  increase  of  the  disability  for  which 

the  pension  has  been  allowed,  or  for  services  rendered  in 

securing  the  passage  of  any  special  act  of  Congress  granting 

a  pension  or  an  increase  of  pension  in  any  case  that 

has  been  presented  at  the  Pension  Office  or  is  allowable 

under  the  general  pension  laws:  And  provided  further.    Penalty  for  tak- 

That  any  agent,  attorney,  or  other  person  instrumental  jn  mg  lUegal  fee- 

prosecuting  any  claim  for  increase  of  pension  on  account 


632  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

of  the  increase  of  disability  for  which  pension  was  allowed, 
or  who  has  rendered  services  in  procuring  the  passage  of 
any  special  act  of  Congress  granting  a  pension  or  an 
increase  of  pension  in  any  case  that  has  been  presented  at 
the  Pension  Office  or  is  allowable  under  the  general  pen- 
sion laws,  who  shall  directly  or  indirectly  contract  for, 
demand,  receive,  or  retain  any  compensation  for  such 
services,  except  as  hereinbefore  provided,  shall  be  deemed 
guilty  of  a  misdemeanor,  and  upon  conviction  thereof  shall, 
for  each  and  every  such  offense,  be  fined  not  exceeding 
five  hundred  dollars  or  imprisoned,  not  exceeding  two 
Pending  con-  year s  or  both,  in  the  discretion  of  the  court:  Provided, 
however,  That  the  foregoing  provisions  in  relation  to  fees 
of  agents  or  attorneys  shall  not  apply  to  any  case  now 
pending  where  there  is  an  existing  lawful  contract  express 
or  implied.  Act  of  March  3,  1891  (26  Stat.  £.,  1082). 

PAYMENT   OF   PENSIONS. 

to^eSd°uaSits     1674.  Within   fifteen   days  immediately  preceding  the 

voucher  to  each  fourth  day  of  March,  June,  September,  and  December  in 

July  sTisV  c.  each  year,  the  several  agents  for  the  payment  of  pensions 

225,  s.  1,  v.  16,  p.  .  -i  /» 

193.  shall  prepare  a  quarterly  voucher  tor  every  person  whose 

'  pension  is  payable  at  his  agency,  and  transmit  the  same  by 

mail,  directed  to  the  address  of  the  pensioner  named  in 

such  voucher,  who,  on  or  after  the  fourth  day  of  March, 

June,  September,  and  December  next  succeeding  the  date 

of  such  voucher,  may  execute  and  return  the  same  to  the 

agency  at  which  it  was  prepared,  and  at  which  the  pension 

of  such  person  is  due  and  payable. 

Fourth- class     1675.  That  hereafter,  in  addition  to  the  officers  now  au- 

postmasters  may 

administerthonzed  to  administer  oaths  in   such  cases,  fourth-class 
Aug.  23,  1894,  postmasters  of  the   United   States   are  hereby  required, 
empowered,  and  authorized  to  administer  any  and  all  oaths 
required  to  be  made  by  pensioners  and  their  witnesses  in 
the  execution  of  their  vouchers  with  like  effect  and  force 
as  officers  having  a  seal;  and  such  postmaster  shall  affix 
the  stamp  of  his  office  to  his  signature  to  such  vouchers, 
Fees.  anci  he  js  authorized  to  charge  and  receive  for  each  voucher 

not  exceeding  twenty-five  cents,  to  be  paid  by  the  pen- 
sioner.   Act  of  August  23,  1894  (28  Stat.  L.,  499). 
oaths  to  be  ad-     1676.  That  hereafter  all  United  States  officers  now  au- 

ministered  by  of- 
ficers free.    *      thorized   to   administer  oaths   are   hereby  required   and 

June  7,  1888,  v. 

25,  P.  174;  Mar.  3,  directed  to  administer  any  and  all  oaths  required  to  be 

1889,  v.  25,  p,  782.  .     ~? 

made  by  pensioners  and  their  witnesses,  in  the  execution 
of  their  vouchers  for  their  pensions  free  of  charge.   Act  of 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  633 

June  7,  1888  (25  Stat.  L.,  174),  and  March  3,  1889  (25  Stat. 
L.,  782). 

1677.  Upon  the  receipt  of  sucli  voucher,  properly  exe-    check  to  be 
cuted,  and  the  identity  of  the  pensioner  being;  established  each  pensioner. 

,  ..    .  ,     Ibid.,  s.2,  p.194. 

and  proved  in  the  manner  prescribed  by  the  Secretary  of  sec.  4766,  R.S. 
the  Interior,  the  agent  for  the  payment  of  pensions  shall 
immediately  draw  his  check  on  the  proper  assistant  treas- 
urer or  designated  depositary  of  the  United  States  for  the 
amount  due  such  pensioner,  payable  to  his  order,  and 
transmit  the  same  by  mail,  directed  to  the  address  of  the 
pensioner  entitled  thereto;  but  any  pensioner  may  be 
required,  if  thought  proper  by  the  Commissioner  of  Pen- 
sions, to  appear  personally  and  receive  his  pension.1 

1678.  That  a  check  or  checks  drawn  by  a  pension  agent    Mailing  check 

„  .  ..  .,  -iiii.  ,,       to  be  payment  in 

in  payment  of  pension  due,  and  mailed  by  him  to  the  certain  cases 
address  of  the  pensioner,  shall  constitute  payment  within  25, p. m  18 
the  meaning  of  section  forty-seven  hundred  and  sixty-five 
Eevised  Statutes,  in  the  event  of  the  death  of  a  pensioner 
subsequent  to  the  mailing  and  before  the  receipt  of  said 
check;  and  the  amount  which  may  have  accrued  on  the  .Accrued  pen- 

'  sion  on  death  of 

pension  of  any  pensioner  subsequent  to  the  last  quarterly  pensioner. 
payment  on  account  thereof  and  prior  to  the  death  of  such 
pensioner  shall  in  the  case  of  a  husband  be  paid  to  his 
widow,  or  if  there  be  no  widow  to  his  surviving  minor 
children  or  the  guardian  thereof,  and  in  the  case  of  a  widow 
to  her  minor  children :  Provided  further.  That  hereafter 
whenever  a  pension  certificate  shall  have  been  issued  and 
the  pensioner  mentioned  therein  dies  before  payment  shall  i>eath  of  pen- 

.  _  sioner,  leaving 

have  been  made,  leaving  no  widow  and  no  surviving  minor  no  widow  or 

,  ...  ,  ,,  ,  -I  -  T  .,.,.  ,,      minor  child. 

children,  the  accrued  pension  due  on  said  certificate  to  the 
date  of  the  death  of  such  pensioner  may,  in  the  discretion 
of  the  Secretary  of  the  Interior,  be  paid  to  the  legal  repre- 
sentatives of  said  pensioner.  Act  of  March  1,  1889  (25 
Stat.  £.,  782). 

1679.  Hereafter  no  pension  shall  be  paid  to  any  person    Pensioners  nn- 

xi  xaii   A..AI.  Iv  •       der  legal  disabili 

other  than  the  pensioner  entitled  thereto,  nor  otherwise  ties. 

-,.  ,1  .    •  /.   ,,  •      ,.,-,  ^  Aug.  8,  1882, v. 

than  according  to  the  provisions  of  this  title;  and  no  war-  22,  P  374. 
rant,  power  of  attorney,  or  other  paper  executed  or  pur- 
porting to  be  executed  by  any  pensioner  to  any  attorney, 
claim  agent,  broker,  or  other  person  shall  be  recognized  by 
any  agent  for  the  payment  of  pensions,  nor  shall  any  pen- 
sion be  paid  thereon ;  but  the  payment  to  persons  laboring 
under  legal  disabilities  may  be  made  to  the  guardians  of 

'For  payment  of  pensions  to  inmates  of  the  Soldiers'  Home,  of  the  National 
Home  for  Disabled  Volunteer  Soldiers,  and  the  Government  Hospital  for  the  Insane, 
see  the  chapters  so  entitled. 


634  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

such  persons  in  the  manner  herein  prescribed,  and  pen- 

sions payable  to  persons  in  foreign  countries  may  be  made 

Pensioners  in  according  to  the  provisions  of  existing  laws  :    Provided. 

foreign     c  o  u  n  - 

tries.  That  in  case  of  an  insane  invalid   pensioner  having  no 

Invalid    pen-  ,-••  ./»  -I--IT  -i 

,  insane,   guardian,  but  having  a  wife  or  children  dependent  upon 


him  (the  wife  being  a  woman  of  good  character),  the  Com- 
missioner of  pensions  is  hereby  authorized,  in  his  discre- 
tion, to  cause  the  pension  to  be  paid  to  the  wife,  upon  her 
properly-executed  voucher,  or  in  case  there  is  no  wife,  to 
the  guardian  of  the  children,  upon  the  properly-executed 
voucher  of  such  guardian,  and  in  like  manner  to  cause  the 
pension  of  invalid  pensioners  who  are  or  may  hereafter  be 
imprisoned  as  punishment  for  offenses  against  the  laws  to 
be  paid  while  so  imprisoned  to  their  wives  or  the  guardians 
Indian  pen-of  their  children.  And  pensions  to  Indian  pensioners 

sioners;pay-  ,  .  ,   .  , 

ments  in  stand  residing  in  the  Indian  Territory  may  be  paid  in  person  by 
the  pension  agent,  upon  a  suitable  voucher,  at  some  con- 
venient point  in  said  Territory,  which,  together  with  the 
form  and  manner  of  identification  of  the  pensioners,  may 

Payments   in  be  prescribed  by  the  Secretary  of  the  Interior:  such  pay- 
cash,  when  made. 

ments  to  be  made  in  standard  silver,  at  least  once  in  each 

current  year.  And  payments  in  person  shall  be  made  to 
the  pensioner,  in  cash,  by  the  pension  agent  whenever  in 
the  discretion  of  the  Commissioner  of  Pensions  such  per- 
sonal payment  shall  be  by  him  deemed  necessary  or  proper 
to  secure  to  the  pensioner  his  rights;  and  the  necessary  and 
Expenses  o  f  actual  expenses  of  such  pension  agent  in  making  such  pay- 
ments shall  be  paid  by  the  Secretary  of  the  Interior  upon 
properly-  executed  vouchers,  out  of  the  contingent  fund 
appropriated  for  the  use  of  the  Pension  Office.  *  *  * 
Act  of  August  8,  1882  (22  Stat.  L.,  374). 

Agencies  to  be     1680.  That  the  Secretary  of  the  Interior  is  hereby  author- 
arranged  in  three 
groups.  ize(i  anci  directed  to  arrange  the  various  agencies  for  the 

Sec.  2,  Mar.  3,  . 

1891,  v.  26,  P.  1082.  payment  of  pensions  in  three  groups  as  he  may  think 

Quarterly  pay-  *    rf  . 

menta  to  groups,  proper,  and  may  from  time  to  time  change  any  agency 
from  one  group  to  another  as  he  may  deem  convenient  for 
the  transaction  of  the  public  business.  *  *  *  The 
Secretary  of  the  Interior  is  hereby  fully  authorized  to  cause 
payments  of  pensions  to  be  made  for  the  fractional  parts 
of  quarters  created  by  such  change,  so  as  to  properly 
adjust  all  payments  as  herein  provided.  Section  forty- 
seven  hundred  and  sixty-four  of  the  Revised  Statutes  is 
hereby  so  amended  as  to  conform  to  the  changes  in  the 
time  of  payments  provided  herein,  and  is  made  applicable 
thereto.  See.  2,  act  of  March  5,  1891  (26  Stat.  L.,  1082). 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  635 

1081.  The  Secretary  of  the  Interior  shall  cause  suitable    Blanks  for 

vouchers;    no- 

blank  S  for  the  vouchers  mentioned  in  section  forty-seven  iic 

' 


hundred  and  sixty-four  to  be  printed  and  distributed  to  sec.4767,E.s. 
the  agents  for  the  payment  of  pensions,  upon  which  he 
shall  cause  a  note  to  be  printed  informing  pensioners  of  the 
fact  that  hereafter  no  pension  will  be  paid,  except  upon 
the  vouchers  issued  as  herein  directed. 

1682.  The  Commissioner  of  Pensions  shall  forward  the    Certificate  of 

,  .  _  „  ,     i    •  A-,  ,  pension  and  fee 

certificate  of  pensions,  granted  in  any  case,  to  the  agent  of  attorney. 

for  paying  pensions  where  such  certificate  is  made  payable,  195.* 

and  at  the  same  time  forward  therewith  one  of  the  articles    Sec-4768»B's« 

of  agreement  filed  in  the  case  and  approved  by  the  Com- 

missioner, setting  forth  the  fee  agreed  upon  between  the 

claimant  and  the  attorney  or  agent,  and  where  no  agree- 

ment is  on  file,  as  hereinbefore  provided,  he  shall  direct 

that  a  fee  of  ten  dollars  only  be  paid  the  agent  or  attorney. 

[See  Sec.  5485.] 

1683.  It  shall  be  the  duty  of  the  agent  paying  such  pen-  top^jfjj!{  JgJJ* 
sion  to  deduct  from  the  amount  due  the  pensioner  the  ney's  fees. 

,.  _    ,          .        _,  find.,  a.  10. 

amount  of  fee  so  agreed  upon  or  directed  by  the  Coiamis-  sec.4769,  K.  s. 
sioner  to  be.paid  where  no  agreement  is  filed  and  approved, 
and  to  forward  or  cause  to  be  forwarded  to  the  agent  or 
attorney  of  record  named  in  such  agreement,  or,  in  case 
there  is  no  agreement,  to  the  agent  prosecuting  the  case, 
the  amount  of  the  proper  fee,  deducting  therefrom  the  sum 
of  thirty  cents,  in  payment  of  his  services  in  forwarding 
the  same. 

DUPLICATE   CHECKS. 

1684.  Whenever  any  original  check  is  lost,  stolen,  or    Duplicate 
destroyed,  disbursing  officers  and  agents  of  the  United  c  FeW  1885,  v. 
States  are  authorized,  after  the  expiration  of  six  mouths,  23sec.33<H6,R.s. 
and  within  three  years  from  the  date  of  such  check,  to 

issue  a  duplicate  check  ;  and  the  Treasurer,  assistant  treas- 
urers, and  designated  depositaries  of  the  United  States 
are  directed  to  pay  such  duplicate  checks,  upon  notice  and 
proof  of  the  loss  of  the  original  checks,  under  such  regu- 
lations in  regard  to  their  issue  and  payment,  and  upon  the 
execution  of  such  bonds,  with  sureties,  to  indemnify  the 
United  States,  as  the  Secretary  of  the  Treasury  shall 
prescribe.  This  section  shall  not  apply  to  any  check  exceed- 
ing in  amount  the  sum  of  twenty-five  hundred  dollars. 
Act  of  February  16,  1885  (23  Stat.  L.,  306). 

SPECIAL  EXAMINATIONS. 

1685.  That  the  Commissioner  of  Pensions  shall  have  the   commisionerof 

.  Pensions  may 

same  power  as  heretofore  to  order  special  examinations  order  special  ex- 


whenever,  in  his  judgment,  the  same  may  be  necessary, 

and  to  increase  or  reduce  the  pension  according  to  right1879'  Vi2l»P'80§ 


636  THE   MILITARY  LAWS   OF   THE   UNITED   STATES. 

and  justice;  but  in  no  case  shall  a  pension  be  withdrawn 
or  reduced  except  upon  notice  to  the  pensioner  and  a  hear- 
ing upon  sworn  testimony,  except  as  to  the  certificate  of 
the  examining  surgeon.1  Sec.  3,  act  of  June  21,  1879  (21 
Stat.  L.,  30). 

1686.  The  Commissioner  of  Pensions  is  authorized  to 
'  v8i7  c  organize?  a*  his  discretion,  boards  of  examining  surgeons, 
76ic  4-74  B  s  no^  ^°  excee(^  three  members,  and  each  member  of  a  board 
thus  organized  who  is  actually  present  and  makes,  in  con- 
nection with  other  members  or  member,  an  ordered  or 
periodical  examination,  shall  be  entitled  to  the  fee  of  one 
dollar,  on  the  receipt  of  a  proper  certificate  of  such  exami- 
nation by  the  Commissioner  of  Pensions.2 

nat?oensal  exami"  1687.  Examining  surgeons  duly  appointed  by  the  Com- 
8ec?47767 B.  s.  niissioner  of  Pensions,  and  such  other  qualified  surgeons 
as  may  be  employed  in  the  Pension-Office,  may  be  required 
by  him,  from  time  to  time,  as  he  deems  for  the  interest  of 
the  Government,  to  make  special  examinations  of  pension- 
ers or  applicants  for  pension,  and  such  examinations  shall 
have  precedence  over  previous  examinations,  whether 
special  or  biennial;  but  when  injustice  is  alleged  to  have 
been  done  by  an  examination  so  ordered,  the  Commissioner 
of  Pensions  may,  at  his  discretion,  select  a  board  of  three 
duly  appointed  examining  surgeons,  who  shall  meet  at  a 
place  to  be  designated  by  him,  and  shall  review  such  cases 
as  may  be  ordered  before  them  on  appeal  from  any  special 
examination,  and  the  decision  of  such  board  shall  be  final 
on  the  question  so  submitted  thereto,  provided  the  Com- 
missioner approve  the  same.  The  compensation  of  each  of 
such  surgeons  shall  be  three  dollars,  and  shall  be  paid  out 
of  any  appropriations  made  for  the  payment  of  pensions, 
in  the  same  manner  as  the  ordinary  fees  of  appointed  sur- 
geons are  or  may  be  authorized  to  be  paid.2 

a^edlxaamfnfneg  1688.  The  Secretary  of  the  Interior  is  authorized  to  ap- 
8UJfS"s.  38,  p.  point  a  duly  qualified  surgeon  as  medical  referee  who, 
57Sec.4776  Rs  un(ler  the  control  and  direction  of  the  Commissioner  of 
Pensions,  shall  have  charge  of  the  examination  and  revi- 
sion of  the  reports  of  examining  surgeons,  and  such  other 
duties  touching  medical  and  surgical  questions  in  the  Pen- 
sion Office,  as  the  interests  of  the  service  may  demand; 
and  his  salary  shall  be  two  thousand  five  hundred  dollars 
per  annum.  And  the  Secretary  of  the  Interior  is  further 
authorized  to  appoint  such  qualified  surgeons  (not  exceed- 
ing four)  as  the  exigencies  of  the  service  may  require,  who 
may  perform  the  duties  of  examining  surgeons  when  so 

» Sections  4771,  4772,  and  4773,  Revised  Statutes,  were  repealed  by  the  act  of  June 
21,  1879  (21  Stat.  L.,  30). 

*  But  see  paragraphs  1692  and  1693,  post. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  637 

required,  and  who  shall  be  borne  upon  the  rolls  as  clerks  of 
the  fourth  class ;  but  such  appointments  shall  not  increase 
the  clerical  force  of  said  Bureau. 

1689.  The  Commissioner  of  Pensions  is  empowered  to    Appointment 

.,.,.,.  ,.  .     .,  .        ,,  .of  civil  examin- 

appoint,  at  his  discretion,  civil  surgeons  to  make  the  pen -ing  surgeons. 

,.,  ...  n  .  -i-i  -i          Ibid.,  8.   35,  p. 

odical  examinations  ot  pensioners  which  are  or  may  06576 
required  by  law,  and  to  examine  applicants  for  pension, 
where  he  deems  an  examination  by  a  surgeon  appointed 
by  him  necessary  5  and  the  fee  for  such  examinations,  and 
the  requisite  certificates  thereof  in  duplicate,  including 
postage  on  such  as  are  transmitted  to  pension-agents,  shall 
be  two  dollars,  which  shall  be  paid  by  the  agent  for  paying 
pensions  in  the  district  within  which  the  pensioner  or 
claimant  resides,  out  of  any  money  appropriated  for  the 
payment  of  pensions,  under  such  regulations  as  the  Com- 
missioner of  Pensions  may  prescribe. 

1690.  The  Commissioner  may,  when  in  his  judgment  the 
degree  of  disability  cannot  be  determined  truthfully 
satisfactorily  excepting  by  expert  examination,  employ  an  v.  22,  p.  IT'G. 
expert,  not  a  regularly  appointed  surgeon,  to  make  the 
examination ;  and  the  fee  for  such  examination  shall  be  five 
dollars :  Provided,  That  the  fee  for  an  expert  examination    Proviso. 
shall  not  be  paid  to  any  regularly-appointed  examining    Fees. 
surgeon.     Act  of  July  25,  1892  (22  Stat.  L.,  176). 

1691.  The  fee  for  the  examination  of  claimants  who  re-    N on  resident 
side  out  of  the  United  States  shall  not  exceed  ten  dollars, c  juVk  1882,  v. 
which  shall  be  paid,  upon  the  presentation  of  satisfactory    ' 
vouchers,  out  of  the  appropriation  for  the  payment  of  the 
examining  surgeons,  and  through  the  United  States  con- 
sulate nearest  to  the  claimant's  place  of  residence.    Act  of 

July  25,  1882  (22  Stat.  L.,  176). 

1692.  That  the  Commissioner  of  Pensions  is  hereby  au-    commissioner 

J  authorized  to  ap- 

thorized  to  appoint  surgeons  who,  under  his  control  and  point  surgeons, 
direction  shall  make  such  examination  of  pensioners  and 
claimants  for  pension  or  increased  pension  as  he  shall  re- 
quire; and  he  shall  organize  boards  of  surgeons,  to  consist  e^grda  of  8ur' 
of  three  members  each,  at  such  points  in  each  State  as  he 
shall  deem  necessary,  and  all  examinations,  so  far  as  prac- 
ticable, shall  be  made  by  the  boards,  and  no  examination 
shall  be  made  by  one  surgeon  excepting  under  such  cir-    special  board 
cumstances  as  make  it  impracticable  for   a  claimant  to° 
present  himself  before  a  board :  Provided,  That  the  Com- 
missioner  may,  when  in  his  opinion  the  exigencies  of  the 
service  require  it,  organize  a  board  of  three  surgeons  who, 
under  his  direction,  shall  review  the  work  of  any  regularly- 
appointed  board  or  surgeon :  Provided  further,  That  all 


638  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

examinations  shall  be  thorough  and  searching,  and  the 
certificate  contain  a  full  description  of  the  physical  condi- 
tion of  the  claimant  at  the  time,  which  shall  include  all  the 
physical  and  rational  signs  and  a  statement  of  all  struc- 
tural changes. 
Free  for  exami-  The  fee  for  each  examination,  and  satisfactory  certificate 

nation,  etc. 

thereof,  shall  be  two  dollars  to  each  member  when  made  by 
Proviso.  a  board,  and  two  dollars  when  made  by  one  surgeon :  Pro- 
vided^ That  when  a  claimant  is  so  disabled  as  not  to  be 
able  to  present  himself  to  a  board  of  surgeons  for  examina- 
tion, the  Commissioner  may  order  a  surgeon  to  make  the 
examination  at  the  claimant's  residence;  and  the  fee  for 
such  examination  shall  be  two  dollars,  in  addition  to  the 
payment  of  the  actual  traveling  expenses  of  the  surgeon : 
Proviso.  Provided  further,  That  no  fee  shall  be  allowed  or  paid  to 
any  member  of  such  board  of  examining  surgeons  who 
does  not  actually  participate  in  such  examination  and  sign 
the  certificate  thereof.1  Sec.  -1,  act  of  July  25,  1882  (22 
Stat.  L.,  175). 

FEES   OF   EXAMINING   SURGKEONS. 

Examinations.  1693.  Each  member  of  each  examining  board  shall,  as  now 
28,P.ii3.'  '  authorized  by  law,  receive  the  sum  of  two  dollars  for  the 
examination  of  each  applicant  whenever  five  or  a  less  num- 
ber shall  be  examined  on  any  one  day,  and  one  dollar  for 
the  examination  of  each  additional  applicant  on  such  day: 
Provided,  That  if  twenty  or  more  applicants  appear  on  one 
day,  no  fewer  than  twenty  shall,  if  practicable,  be  examined 
on  said  day,  and  that  if  fewer  examinations  be  then  made, 
twenty  or  more  having  appeared,  then  there  shall  be  paid 
for  the  first  examinations  made  on  the  next  examination  day 
the  fee  of  one  dollar  only  until  twenty  examinations  shall 

NO  fee  unless  have  been  made :  Provided  further,  That  no  fees  shall  be 

service  rendered.        .  ..  , 

paid  to  any  member  of  an  examining  board  unless  personally 
present  and  assisting  in  the  examination  of  applicant.2 
Act  of  July  18,  1894  (28  Stat.  L.,  113). 

insiecTreport.ay  1694-  That  the  report  of  such  examining  surgeons  when 
28fp!1m8'1894' v  filed  iu  the  Pension  Office  shall  be  open  to  the  examination 
and  inspection  of  the  claimant  or  his  attorney,  under  such 
reasonable  rules  and  regulations  as  the  Secretary  of  the 
Interior  may  provide.  Act  of  July  18,  1894  (28  Stat.  L., 
113). 

1  This  section  replaces,  in  part,  section  4775,  Revised  Statutes,  which  authorized 
the  appointment  of  boards  of  examining  surgeons  and  prescribed  their  fees. 

2  A  similar  provision  will  be  found  in  the  acts  of  July  2,  1886  (24  Stat.  L.,  122) ;  March 

1,  1887  (24  Stat.  L.,  440) ;  June  7, 1888  (25  Stat.  L.,  174) ;  March  1,  1889  (25  Stat.  L.,  782) ; 
June  30,1890  (26  Stat.  L.,  188);  March  3,  1891  (26  Stat.  L.,1082);   July  13,  1892  (27 
Stat.  L.,  119) ;  March  1,  1893  (27  Stat.  L.,  524) ;  July  18,  1894  (28  Stat.  L.,  113) ;  March 

2,  1895  (28  Stat.  L.,  403) ;  and  March  6, 1896  (29  Stat.  L.,  45). 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


639 


penalties. 


ASSIGNMENTS,   ETC. 

1695.  Any  pledge,  mortgage,  sale,  assignment,  or  trans-  Any  pledge  or 
fer  of  any  right,  claim,  or  interest  in  any  pension  which  has  8ion8vohi°f  pen 
been,  or  may  hereafter  be,  granted,  shall  be  void  and  of  no 
effect,  and  any  person  who  shall  pledge,  or  receive  as  a 
pledge,  mortgage,  sale,  assignment  or  transfer  of  any  right, 
claim,  or  interest  in  any  pension,  or  pension  certificate, 
which  has  been,  or  may  hereafter  be  granted  or  issued,  or 
who  shall  hold  the  same  as  collateral  security  for  any  debt, 
or  promise,  or  upon  any  pretext  of  such  security,  or  prom- 
ise, shall  be  guilty  of  a  misdemeanor,  and  upon  conviction 
thereof  shall  be  fined  in  a  sum  not  exceeding  one  hundred 
dollars  and  the  costs  of  the  prosecution  ;  and  any  person 
who  shall  retain  the  certificate  of  a  pensioner  and  refuse  to 
surrender  the  same  upon  the  demand  of  the  Commissioner 
of  Pensions,  or  a  United  States  pension  agent,  or  any  other 
person,  authorized  by  the  Commissioner  of  Pensions,  or  the 
pensioner,  to  receive  the  same  shall  be  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  shall  be  fined  in  a  sum 
not  exceeding  one  hundred  dollars  and  the  costs  of  the 
prosecution.  Sec.  2,  act  of  February  23,  1883  (22  Stat.  L.,432). 

1698.  No  sum  of  money  due,  or  to  become  due,  to  any 
pensioner,  shall  be  liable  to  attachment,  levy,  or  seizure  by 
or  under  any  legal  or  equitable  process  whatever,  whether 
the  same  remains  with  the  Pension-Office,  or  any  officer  or 
agent  thereof,  or  is  in  course  of  transmission  to  the  pen- 
sioner entitled  thereto,  but  shall  inure  wholly  to  the  benefit 
of  such  pensioner. 

INVESTIGATIONS. 

1697.  The  Commissioner   of  Pensions  is  authorized  to  .  Special  service 

in  investigating 

detail,  from  time  to  time,  clerks  or  persons  employed  in  his  suspected  at 

r      J  tempts  at  fraud. 

office  to  make  special  examinations  into  the  merits  of  such  Mar.  3,  ISTS,  c. 
pension  or  bounty  land  claims,  whether  pending  or  adjudi-  P.  575.  sec.  2,' 
cated,  as  he  may  deem  j>roper,  and  to  aid  in  the  prosecu-  22!  p.  175. 

..  ,*  .  i  •       j.-  i         Sec.  4744,  R.  S. 

tion  of  any  party  appearing  on  such  examinations  to  be 
guilty  of  fraud,  either  in  the  presentation  or  in  procuring 
the  allowance  of  such  claims;  and  any  person  so  detailed 
shall  have  power  to  administer  oaths  and  take  affidavits 
and  depositions  in  the  course  of  such  examinations,  and  to 
orally  examine  witnesses,  and  may  employ  a  stenographer, 
when  deemed  necessary  by  the  Commissioner  of  Pensions, 
in  important  cases,  such  stenographer  to  be  paid  by  such 
clerk  or  person,  and  the  amount  so  paid  to  be  allowed  in 
his  accounts.  Sec.  2,  act  of  July  25,  1882  (22  Stat.  L.,  175). 


pension  not  u- 
e°c  attach- 


c  «47  B.  s. 


640  THE   MILITARY   LAWS    OF   THE    UNITED    STATES. 

investigating  16S8.  That  the  same  power  to  administer  oaths  aiid  take 
minister  oaths,  affidavits,  which  by  virtue  of  section  forty-seven  hundred 
6  sec.  3,  Mar.  3,  and  forty-four  of  the  Eevised  Statutes  is  conferred  upon 
clerks  detailed  by  the  Commissioner  of  Pensions  from  his 
office  to  investigate  suspected  attempts  at  fraud  on  the 
Government  through  and  by  virtue  of  the  pension  laws, 
and  to  aid  in  prosecuting  any  person  so  offending,  shall  be, 
and  is  hereby,  extended  to  all  special  examiners  or  addi- 
tional special  examiners  employed  under  authority  of  Con- 
gress to  aid  in  the  same  purpose.  Sec.  3,  act  of  March  3S 
1891  (26  Stat.  L.,  1083). 

subpoenas  to  1699.  That  in  addition  to  the  authority  conferred  by 
Sec.  a,  July  25,  section  one  hundred  and  eighty-four,  title  four  of  the  Ee- 
''  vised  Statutes,  any  judge  or  clerk  of  any  court  of  the  United 
States  in  any  State,  District,  or  Territory  shall  have  power, 
upon  the  application  of  the  Commissioner  of  Pensions,  to 
issue  a  subposna  for  a  witness,  being  within  the  jurisdiction 
of  such  court,  to  appear,  at  a  time  and  place  in  the  sub- 
poena stated,  before  any  officer  authorized  to  take  depo- 
sitions to  be  used  in  the  courts  of  the  United  States,  or 
before  any  officer,  clerk,  or  person  from  the  Pension  Bureau 
designated  or  detailed  to  investigate  or  examine  into  the 
merits  of  any  pension  claim  and  authorized  by  law  to  ad- 
minister oaths  and  take  affidavits  in  such  investigation  or 
examination,  there  to  give  full  and  true  answers  to  such 
written  interrogatories  and  cross  interrogatories  as  may  be 
propounded,  or  to  be  orally  examined  and  cross-examined 
witnesses' upon  the  subject  of  such  claim;  and  witnesses  subpoanaed 
pursuant  to  this  and  the  preceding  section  shall  be  allowed 
the  same  compensation  as  is  allowed  witnesses  in  the  courts 
of  the  United  States,  and  paid  in  the  same  manner.1  Sec. 
3,  act  of  July  25,  1882  (22  Stat.  L.,  175). 

MISCELLANEOUS. 

fl(Kciarypag0entof     1700.  Every  guardian,  conservator,  curator,  committee, 
26Fpb7'460'1891lT'  tutor,  or  other  person  having  charge  and  custody  in  a 
fiduciary  capacity  of  the  pension  of  his  ward,  who  shall 
embezzle  the  same  in  violation  of  his  trust,  or  fraudu- 
B  s.^tly  convei>t  the  same  to  his  own  use,  shall  be  punished 
by  fine  not  exceeding  two  thousand  dollars  or  imprison- 
ment at  hard  labor  for  a  term  not  exceeding  five  years,  or 
both,  at  the  discretion  of  the  court.     Act  of  February  10, 
1891  (26  Stat.  L.,  746). 

1  For  power  to  issue  compulsory  process  in  certain  cases  see  section  186,  Revised 
Statutes. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  641 

1701.  Nothing  in  this  Title1  shall  be  so  construed  as  to  .Only  one  pen- 

sion at  a  time. 

allow  more  than  one  pension  at  the  same  time  to  the  same  sec.2o,twd. 
person,  or  to  persons  entitled  jointly;  but  any  pensioner 
who  shall  so  elect  may  surrender  his  certificate,  and  receive, 
in  lieu  thereof,  a  certificate  for  any  other  pension  to  which 
he  would  have  been  entitled  had  not  the  surrendered  cer- 
tificate been  issued.  But  all  payments  previously  made 
for  any  period  covered  by  the  new  certificate  shall  be 
deducted  from  the  amount  allowed  by  such  certificate.2 

1702.  All  pensioners  whose  names  are  now  on  the  pen-    Continuance 
sion-roll  or  who  are  entitled  to  restoration  to  the  roll  under  °  s 


any  act  of  Congress,  shall  be  entitled  to  the  continuance 
of  such  pensions  under  the  provisions  and  limitations  of 
this  Title,  and  to  such  further  increase  of  pension  as  is 
herein  provided. 

1703.  The  provisions  of  law  which  allow  the  withholding    Pensions    not 
of  the  compensation  of  any  person  who  is  in  arrears  shall  ^M^MSS^'C. 
not  be  construed  to  authorize  the  pension  of  any  pensioner  77slcf  km1,'  B.S. 
of  the  United  States  to  be  withheld. 

1704.  That  hereafter  no  pension  shall  be  allowed  or  paid    Pensions  not 

,*{*  •      •  -i       AT.  •  allowed    to   per- 

to  any  officer,  non-commissioned  officer,  or  private  in  the  sons  m  Army  or 


Army,  Navy,  or  Marine  Corps  of  the  United  States,  either  " 

on  the  active  or  retired  list.3    Act  of  March  3,  1891  (26  Stat.  26>  p'  1082* 

£.,  1082). 

1705.  No  person  in  the  Army,  Navy,  or  Marine  Corps    Both    pension 

1  •,,    -,  i      .1  •  •          T  i  -i   ,1  n  t  •     ar)d  pay  not  al- 

shall  draw  both  a  pension  as  an  invalid,  and  the  pay  of  his  lowed  unless,  etc. 
rank  or  station  in  the  service,  unless  the  disability  for  15^  vr'  5°'  ^57  1 
which  the  pension  was  granted  be  such  as  to  occasion  his  ^2^*5,'  p844b?'3' 
employment  in  a  lower  grade,  or  in  the  civil  branch  of  the  SeCt*m»B's- 
service. 

1706.  That  all  persons  who,  under  and  by  virtue  of  the    soldiers  in  the 
first  section  of  the  act  entitled  "An  act  supplementary  to  dpiyS^?t  Of 
the  several  acts  relating  to  pensions,"  approved  March  hew.lons  Wlth" 
third,  eighteen  hundred  and  sixty-five,  were  deprived  of  20Ma£2J-  1879>v. 
their  pensions  during  any  portion  of  the  time  from  the 

third  of  March,  eighteen  hundred  and  sixty-five,  to  the 
sixth  of  June,  eighteen  hundred  and  sixty-six,  by  reason 
of  their  being  in  the  civil  service  of  the  United  States, 
shall  be  paid  their  said  pensions,  withheld  by  virtue  of 
said  section  of  the  act  aforesaid,  for  and  during  the  said 

>  Title  LVIL  Revised  Statutes.  By  the  terms  of  section  4722  of  the  Revised 
Statutes  the  provisions  of  this  Title  are  made  applicable  to  the  officers  and  privates 
of  the  Missouri  State  militia  and  the  Missouri  provisional  militia  in  certain  cases. 

2  The  act  of  March  1,  1893  (2>7  Stat.  L.,  524)  contains  the  requirement  that  no 
pension  shall  be  paid  to  a  non-resident  who  is  not  a  citizen  of  the  United  States, 
except  for  actual  disabilities  incurred  in  the  service.     This  statute  was  repealed  by 
the  act  of  March  2.  1895  (28  Stat.  L.,  703). 

3  Section  2  of  the  act  of  August  29,  1890  (26  Stat  L.,  371),  contained  the  requirement 
that,  "Hereafter  no  officer  of  the  Army,  Navy,  or  Marine  Corps  on  the  retired  list 
shall  draw  or  receive  any  pension  under  any  law." 

1919  -  41 


642  THE    MILITARY   LAWS   OF   THE    UNITED    STATES. 

period  of  time  from  the  third  of  March,  eighteen  hundred 
and  sixty-five,  to  the  sixth  of  June,  eighteen  hundred  and 
sixty-six.1     Act  of  March  1,  1879  (20  Stat.  L.,  327). 
Certain  sol-     1707.  No  soldier  or  sailor  shall  be  taken  or  held  to  be 

diers  and  sailors  /•    •  ,  ••   /•   -n  i 

not  to  be  deemed  a  deserter  from  the  Army  or  Navy  who  faithfully  served 

eju\yei9,  i867,c.  according  to  his  enlistment  until  the  nineteenth  day  of 

28Sec*4749*4R.  s.  April,  eighteen  hundred  and  sixty-five,  and  who,  without 

proper  authority  or  leave  first  obtained,  quit  his  command 

or  refused  to  serve  after  tbat  date;  but  nothing  herein 

contained  shall  operate  as  a  remission  of  any  forfeiture 

incurred  by  any  such  soldier  or  sailor  of  his  pension;  but 

this  section  shall  be  construed  solely  as  a  removal  of  any 

disability  such  soldier  or  sailor  may  have  incurred  by  the 

loss  of  his  citizenship  in  consequence  of  his  desertion. 

sir  dollars  a     1708.  That  from  and  after  the  passage  of  this  Act.  all 

moiithmademin-  ,  .  .. 

imumrate.        pensioners  now  on  the  rolls,  who  are  pensioned  at  less 

Mar.  2,  1895,  v.    ,  ^.       „  ,  „  ,, 

28,  p.  704.  than  six  dollars  per  month,  for  any  degree  of  pensionable 

disability,  shall  have  their  pensions  increased  to  six  dollars 
per  month;  and  that  hereafter,  whenever  any  applicant 
for  pension  would,  under  existing  rates,  be  entitled  to  less 
than  six  dollars  for  any  single  disability,  or  several  com- 
bined disabilities,  such  pensioner  shall  be  rated  at  not  less 

»o  prior  effect,  than  six  dollars  per  month:  Provided  also,  That  the  pro- 
visions hereof  shall  not  be  held  to  cover  any  pensionable 
period  prior  to  the  passage  of  this  act,  nor  authorize  a 
re-rating  of  any  claims  for  any  part  of  such  period,  nor 
prevent  the  allowance  of  lower  rates  than  six  dollars  per 
month,  according  to  the  existing  practice  in  the  Pension 
Office  in  pending  cases  covering  any  pensionable  period 
prior  to  the  passage  of  this  Act.  Act  of  March  2,  1895  (28 
Stat.  £..  704). 

Disloyalty  a     1709.  No  money  on  account  of  pension  shall  be  paid  to 

bar  to  pension. 

Sec.  4710,  K.S.  any  person,  or  to  the  widow,  children,  or  heirs  of  any 
deceased  person,  who  in  any  manner  voluntarily  engaged 
in  or  aided  or  abetted  the  late  rebellion  against  the  author- 
ity of  the  United  States. 

ingaJmSon8bito     1710'  Tnat  tn6  law  2  Pronioiting  tne  payment  of  any 
reebemonaimodf  monev  on  accoun^  °^  pensions  to  any  person,  or  to  the 


fi<Mar  3  187   v  w^ow>  children,  or  heirs  of  any  deceased  person,  who,  in 
19,  p.  403.'         '  any  manner,  engaged  in  or  aided  or  abetted  the  late  rebel- 
lion against  the  authority  of  the  United  States,  shall  not 
be  construed  to  apply  to  such  persons  as  afterward  volun- 
tarily enlisted  in  the  Army  of  the  United  States,  and  who, 

1  The  act  of  June  6,  1866  (14  Stat.  L.,  57),  repealed  the  requirement  of  the  act  of 
March  3,  1865,  depriving  certain  persons  employed  in  the  civil  service  of  the  United 
States  of  pensions  to  which  they  were  otherwise  entitled. 

3  Section  4716,  Revised  Statutes,  paragraph  1709,  pott. 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  643 

while  in  such  service,  incurred  disability  from  a  wound  or 
injury  received  or  disease  contracted  in  the  line  of  duty. 
Act  of  March  3,  1877  (19  Mat.  L.,  403). 

1711.  That  the  law  prohibiting  the  payment  of  any  money    Disloyalty,  as 

„  _  .,    a   bar,    removed 

on  account  of  pension  to  any  person,  or  to  the  widow,  chil-  in  certain  cases. 

,      .        *  ,  Mar.    3,    1877; 

dren,  or  heirs  or  any  deceased  person,  who  in  any  manner  Aug.  i,  1392,  v. 
engaged  in  or  aided  or  abetted  the  late  rebellion  against  27|P'340' 
the  authority  of  the  United  States,  shall  not  be  construed 
to  apply  to  such  persons  as  afterwards  voluntarily  enlisted 
in  either  the  Navy  or  Army  of  the  United  States,  and  who, 
while  in  such  service,  incurred  disability  from  a  wound  or 
injury  received  or  disease  contracted  in  the  line  of  duty. 
Acts  of  March  3,  1877,  and  August  1,  1892  (27  Stat.  L.,  340). 

1712.  If  any  guardian  having  the  charge  and  custody  of 

the  pension  of  his  ward  shall  embezzle  the  same  in  viola-  B  g 

tion  of  his  trust,  or  fraudulently  convert  the  same  to  his 

own  use,  he  shall  be  punished  by  fine  not  exceeding  two 

thousand  dollars,  or  imprisonment  at  hard  labor  for  a  term 

not  exceeding  five  years,  or  both,  at  the  discretion  of  the 

court. 

1713.  That  any  pension  heretofore  or  that  may  hereafter    suspension  of 

J  pension,    notice, 

be  granted  to  any  applicant  therefor  under  any  law  of  the  etc.,  to  pensioner. 

United  States  authorizing  the  granting  and  payment  ofi893,v.28)P.ci8.  ' 

pensions,  on  application  made  and  adjudicated  upon,  shall 

be  deemed  and  held  by  all  officers  of  the  United  States  to 

be  a  vested  right  in  the  grantee  to  that  extent  that  pay-  ,  tensions  to  be 

J    deemed   vested 

ment  thereof  shall  not  be  withheld  or  suspended  until,  rights. 
after  due  notice  to  the  grantee  of  not  less  than  thirty  days, 
the  Commissioner  of  Pensions,  after  hearing  all  the  evi- 
dence, shall  decide  to  annul,  vacate,  modify,  or  set  aside 
the  decision  upon  which  such  pension  was  granted.  Such 
notice  to  grantee  must  contain  a  full  and  true  statement 
of  any  charges  or  allegations  upon  which  such  decision 
granting  such  pension  shall  be  sought  to  be  in  any  manner 
disturbed  or  modified.1  Act  of  December  21,  1893  (28  Stat. 


'The  act  of  May  21,  1872  (not  incorporated  in  the  Revised  Statutes),  contained  a 
provision  imposing  a  penalty  for  the  retention  by  an  attorney,  or  claim  agent,  of  the 
discharge  certificate  or  land'  warrant  of  a  discharged  soldier,'  sailor,  or  marine. 


CHAPTER    XL. 


THE  SOLDIERS'  HOME. 


Par.  Par. 

1714.  Board  of  Commissioners.          1729-1733.  Funds  for  supportof  the 

1715,1716.  Officers.  Soldiers'  Home. 

1717,  1718.  Duties  of  Commission-    1734-1736.  Miscellaneous      provi- 

ers.  sions. 

1719.  Inspection. 
1720-1728.  Admission    and    dis 

charge  of  inmates. 

BOARD   OF   COMMISSIONERS. 

Board  of  com-     1714.  That  the  Board  of  Commissioners  of  the  Soldiers7 

missioners  of  the 

solders1  Home.  Home  shall  hereafter  consist  of  the  General  in  Chief  com- 
25,s  2V.9,p.595,'manding  the  Army,  the  Surgeon  General,  the  Commissary 
s.  4.  V.'u,  p.  434';  General,  the  Adjutant  General,  the  Quartermaster  General, 
1883,  v.  ?2,  Pai565'.  the  Judge  Advocate  General  and  the  Governor  of  the  Home, 
*ec.48i5,R.s.and  the  Q.^^  in  GMef  shall  be  president  of  the  Board, 

and  any  four  of  them  shall  constitute  a  quorum  for  the 
transaction  of  business;  whose  duty  it  shall  be  to  examine 
and  audit  the  accounts  of  the  treasurer  quarter-yearly,  and 
to  visit  and  inspect  the  Soldiers7  Home  at  least  once  in 
every  month.  The  majority  shall  also  have  power  to  estab- 
lish, from  time  to  time,  regulations  for  the  general  and 
internal  direction  of  the  institution,  to  be  submitted  to  the 
Secretary  of  War  for  approval;  and  may  do  any  other  acts 
necessary  for  the  government  and  interests  of  the  same,  as 
authorized  by  this  chapter.  Sec.  10,  act  of  March  «?,  1883 
(22  Stat.  L.,  565}. 

OFFICERS. 

officers.  1715.  The  officers  of  the  Soldiers7  Home  shall  consist  ot 

Mar.  3,  1851,  c. 

25,  s.  3,  v.  9,P.  595  a  governor,  a  deputy  governor,  and  a  secretary,  for  each 
'  separate  site  of  the  home,  the  latter  to  be  also  the  treas- 
urer ;  and  the  officers  shall  be  taken  from  the  Army,  and 
appointed  or  removed,  from  time  to  time,  as  the  interests  of 
the  institution  may  require,  by  the  Secretary  of  War,  on 
the  recommendation  of  the  board  of  commissioners. 
Governor  and     1716.  That  the  Governor  and  all  other  officers  of  the 
Home  shall  be  selected  by  the  President  of  the  United 
states  States,  and  the  Treasurer  of  the  Home  shall  be  required  to 

644 


y 

6  Uuited 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.          645 

give  a  bond  in  the  penal  sum  of  twenty  thousand  dollars  i^eba08"<jer  to 
for  the  faithful  performance  of  his  duty.1  Sec.  7,  act  #/18fjc;  T^Mar^a, 
March  5,  1883  (22  Mat.  L.,  564). 

DUTIES   OF   COMMISSIONERS. 

1717.  The  commissioners  of  the  Soldiers'  Home,  by  and.  sites  and  buiid- 
with  the  approval  of  the  President,  shall  procure  for  imme-  r  sec.  8,  ibid.,  P. 
diate  use,  at  a  suitable  place  or  places,  a  site  or  sites  for  °  s'ec.48i7,R.s. 
the  Soldiers'  Home,  and  if  the  necessary  buildings  cannot 

be  procured  with  the  sites,  to  have  the  same  erected,  hav- 
ing due  regard'  to  the  health  of  the  locations,  facility  of 
access,  and  economy,  and  giving  preference  to  such  places 
as,  with  the  most  convenience  and  least  cost,  will  accom- 
modate the  persons  entitled  to  the  benefits  of  the  Soldiers' 
Home.1 

1718.  That  the  board  of  commissioners  of  the  Soldiers'p^;^1^* 
Home  shall  every  year  report  in  writing  to  the  Secretary  ^1^™  ton0njj' 
of  War,  giving  a  full  statement  of  all  receipts  and  disburse-  c--  etc- 

Board  of  com- 

ments of  monev,  of  the  manner  in  which  the  funds  aremi88ioners  to 

.  make  annual  re- 

in  vested  of  any  changes  in  the  investments  and  the  reasons  port,  etc. 

,     Mar.  3.  1883,  v. 

therefor,  of  all  admissions  and  discharges,  and  generally  of  22,  P.  565. 

all  facts  that  may  be  necessary  to  a  full  understanding  of 

the  condition  and  management  of  the  Home.     The  Secre- 

tary of  War  shall  have  power  to  call  for  and  require  any 

omitted  facts  which  in  his  judgment  should  be  stated  to  be 

added.    This  annual  report  shall  be,  by  the  Secretary  of  warCt»  transmit 

War,  together  with  the  report  of  the  inspecting  officer  report,  etc.,  to 

hereinafter  provided  for,  transmitted  to  Congress  at  the 

first  session  thereafter,  and  he  shall  also  cause  the  same  to 

be  published  in  orders  to  the  Armj,  a  copy  thereof  to  be 

deposited  in  each  garrison  and  post  library.     Act  of  March 

3,  1883  (22  Stat.  L.,  565). 

INSPECTION. 

1719.  That  the  Inspector  General  of  the  Army  shall, 
person,  once  in  each  year  thoroughly  inspect  the  Home,  i 


records,  accounts,  management,  discipline,  and  sanitary    Sec-  2,  Mar.  3 
condition,  and  shall  report  thereon  in  writing,  together  with 
such  suggestion  s  as  he  desires  to  make.     Sec.  2,  act  of  March 
5,  1883  (22  Stat.  L.,  564). 

lHeld  that  a  medical  officer  of  the  Army  occupying  quarters  at  the  Soldiers' 
Home  was  not  thereby  precluded  from  receiving  commutation  of  quarters  at  New 
York  on  being  ordered  to  duty  there  as  a  member  ot  a  medical  examining  board. 
The  quarters  occupied  by  him  at  the  Home  are  not  "public  quarters"  in  the  sense 
of  paragraph  1480,  Army  Regulations;  he  does  not  occupy  them  at  the  expense  of 
the  United  States;  and  by  allowing  him  the  commutation  the  Government  is  not  put 
to  a  double  expense  for  his  quarters.  (Dig.  J.  A.  Gen.,  706,  par,  7.) 


646  THE   MILITARY   LAWS    OF   THE   UNITED    STATES. 


ADMISSION  AND   DISCHARGE   OF   INMATES. 

may  be-  1720.  All  soldiers  of  the  Army  of  the  United  States,  and 
th™es™TS  TJV  s  '  all  soldiers  who  have  been,  or  may  hereafter  be,  of  the 

Mar!  s,  i85i,  c.  Army  of  the  United  States,  and  who  have  contributed,  or 
595;8Mar?3,  IBS?,  may  hereafter  contribute,  according  to  section  forty-eight 

''88   '    T    '  hundred  and  nineteen,  to  the  support  of  the  Soldiers'  Home 


Sec<48I4'B*8'  hereby  created,  and  the  invalid  and  disabled  soldiers, 
whether  regulars  or  volunteers,  of  the  war  of  eighteen  hun- 
dred and  twelve,  and  of  all  subsequent  wars,  shall  under 
the  restrictions  and  provisions  which  follow,  be  members 
of  the  Soldiers'  Home,  with  all  the  rights  annexed  thereto. 
1721<  The  following  persons,  members  of  the  Soldiers' 
S°1  "  Home,  according  to  section  forty-eight  hundred  and  four- 
25Mar.3,^85i,c.  teen,  shall  be  entitled  to  the  rights  and  benefits  herein 
596^  M*r.i  IUBW,  conferred,  and  no  others  : 

434.'  '  First.  Every  soldier  of  the  Army  of  the  United  States 

'  who  has  served,  or  may  serve,  honestly  and  faithfully 
twenty  years  in  the  same. 

Second.  Every  soldier  and  every  discharged  soldier, 
whether  regular  or  volunteer,  who  has  suffered,  or  may 
suffer,  by  reason  of  disease  or  wounds  incurred  in  the 
service  and  in  the  line  of  his  duty,  rendering  him  incapa- 
ble of  further  military  service,  if  such  disability  was  not 
occasioned  by  his  own  misconduct. 

Third.  The  invalid  and  disabled  soldiers,  whether  regu- 
lars or  volunteers,  of  the  war  of  eighteen  hundred  and 
twelve,  and  of  all  subsequent  wars.1 

Rights  of  pen-  1722.  The  fact  that  one  to  whom  a  pension  has  been 
render  of  pen-  granted  for  wounds  or  disability  received  in  the  military 
81  Mar.  3,  i85i,  c.  service  has  not  contributed  to  the  funds  of  the  Soldiers' 
596  ^MarTs,  1859,'  Home  shall  not  preclude  him  from  admission  thereto.  But 
c^83,  s.  e,  v.  11,  p.  a|j  gucn  pensioners  shall  surrender  their  pensions  to  the 
8ws*  *820'  R*  s*  Soldiers'  Home  during  the  time  they  remain  therein  and 

voluntarily  receive  its  benefits.2 
are  ex"     1723f  Tne  benefits  of  tne  Soldiers'  Home  shall  not  be 


Mar.  '3,  i85i,  c.  extended  to  any  soldier  in  the  regular  or  volunteer  service, 
fiL9!.'  convicted  of  felony  or  other  disgraceful  or  infamous  crimes 
of  a  civil  nature,  after  his  admission  into  the  service  of  the 
United  States;  nor  shall  any  one  who  has  been  a  deserter, 
mutineer,  or  habitual  drunkard  be  received,  without  such 

1  Held  that  under  section  4821,  Revised  Statutes,  invalid  and  disabled  soldiers  of  the 
•war  of  the  rebellion  and  of  Indian  wars  were  entitled  to  the  benefits  of  the  Soldiers' 
Home,  although  the  disability  may  not  have  grown  out  of  their  military  service, 
provided  it  be  not  the  result  of  their  own  misconduct  as  indicated  in  section  4822, 
Ravised  Statutes.     (Dig.  J.  A.  Gen.,  705,  par.  1.) 

2  Section  4820,  Revised  Statutes,  admits  of  no  other  reasonable  construction  than 
that  only  invalid  pensioners  who  had  not  contributed  to  the  funds  of  the  Soldiers' 
Home  were  bound  to  surrender  to  it  their  pensions  while  receiving  its  benefits. 
(U.  S.  v.  Bowen,  100  U.  S.,  508;  but  see  paragraph  1720,  post.) 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  647 

evidence  of  subsequent  service,  good  conduct,  and  reforma- 
tion of  character,  as  is  satisfactory  to  the  commissioners. 

1724.  Any  soldier  admitted  into  the  Soldiers'  Home  for   Discharge. 

,.,,.,  ,  ~  j.     Sec.  5,  ib%d. 

disability  who  recovers  his  health,  so  as  to  become  nt   sec.  4823,  B.  s. 
again  for  military  service,  if  under  fifty  years  of  age,  shall 
be  discharged.1 

1725.  That  the  board  of  commissioners  are  authorized  toet^idb*?Peurt8^ 
aid  persons  who  are  entitled  to  admission  to  the  Home,  re^-  6  Mar  3 
by  out-door  relief,  in  such  manner  and  to  such  an  extent  as  i883,  v.  22,  p.  565.' 
they  may  deem  proper;  but  such  relief  shall  not  exceed 

the  average  cost  of  maintaining  an  inmate  of  the  Home. 
Sec.  6,  act  of  March  5,  1883  (22  Stat.  L.,  565}. 

1726.  That  any  inmate  of  the  Home  who  is  receiving  a    P«n81'°"  in- 

_        mates    ot    Home 

pension  from  the  government,  and  who  has  a  child,  wife?  can  allot  portion 

of  pension,  etc. 

or  parent  living,  shall  be  entitled,  by  filing  with  the  pension 

agent  from  whom  he  receives  his  money  a  written  direction 

to  that  effect,  to  have  his  pension,  or  any  part  of  it,  paid 

to  such  child,  wife,  or  parent.     The  pensions  of  all  *fc°iaJPiJJ*la^f||*5^ 

now  are  or  shall  hereafter  become  inmates  of  the  Home,  tr|g'cur4er^Iar  3 

except  such  as  shall  be  assigned  as  aforesaid,  shall  be  paid  isss,  v.  22,  P.  564.' 

to  the  treasurer  of  the  Home.     The  money  thus  derived 

shall  not  become  a  part  of  the  funds  of  the  Home,  but 

shall  be  held  by  the  treasurer  in  trust  for  the  pensioner  to 

whom  it  would  otherwise  have  been  paid,  and  such  part  of   Pension  paid 

it  as  shall  not  sooner  have  been  paid  to  him  shall  be  paid  charge  oT  pen- 

to  him  on  his  discharge  from  the  institution.    The  board 


of  commissioners  may  from  time  to  time  pay  over  to  any 
inmate  such  part  of  his  pension-money  as  they  think  best 
for  his  interest  and  consistent  with  the  discipline  and  good 
order  of  the  Home,  but  such  pensioner  shall  not  be  entitled 
to  demand  or  have  the  same  so  long  as  he  remains  an  inmate 
of  the  Home.  In  case  of  the  death  of  any  pensioner,  any  Death  of  pen- 

,  ,  .  .     .  -iii/.,       sioner;    money 

pension  money  due  him  remaining  in  the  hands  of  the  due,  etc..  paid  to 
treasurer  shall  be  paid  to  his  legal  heirs,  if  demand  is  made  e* 
within  three  years;  otherwise  the  same  shall  escheat  to  the 
Home.     Sec.  4,  act  of  March  3,  1883  (22  Stat.  L.,  564). 

1727.  That  a  suitable  uniform  shall  be  furnished  to  every  fn^i[^(*°.bie 
inmate  of  the  Home,  without  cost  to  him.  Sec.  5,  act  o/™^68  free  of 
March  3,  1883  (22  Stat.  L.,  565).  e  '' 


'An  inmate  is  not  required  to  remain  at  the  Home  if  he  wishes  to  leave  it.  The 
privileges  of  the  institution  may  be  renounced  by  any  act  showing  an  intention  to 
renounce  them—  such  as  direct  notice  of  such  intention,  or  by  an  absenting  with 
the  evident  purpose  of  not  returning.  In  February,  1864,  a  certain  inmate  was 
transferred  from  the  Home  to  the  Government  Insane  Hospital,  and  was  discharged 
thence  as  sane  in  June,  1864.  He  did  not  return  to  the  Home  and  was  not  again 
heard  of  till  March,  1886,  when  it  was  ascertained  that  he  was  at  the  State  Insane 
Hospital  of  Pennsylvania.  As  he  was  sane  when  he  left  the  Government  Hospital 
and  did  not  return  to  the  Horn  •<  within  a  reasonable  time,  but  remained  absent 
nearly  twenty-two  years,  held  that  he  must  be  deemed,  in  the  absence  of  contrary 
evidence,  to  have  intended  to  permanently  separate  himself  from  the  institution, 
and  that  he  therefore  was  not  now  an  inmate  or  member  of  the  same.  (Dig.,  J.  A.  Gen., 
505,  par.  4.) 


648  THE    MILITARY    LAWS    OF    THE    UNITED    STATES, 

inmates  sub-     1728.  All  persons  admitted  into  the  Soldiers'  Home  shall 

ject  to  Articles  of  . 

War'   3  1859  o  be  subJect  to  tlie  Kules  and  Articles  of  War  in  the  same 
83, s.a7,V.ii,  p.434'.  manner  as  soldiers  in  the  Army.1 

Sec.  4824,  R.S. 

FUNDS  FOR   SUPPORT   OF   THE   SOLDIERS'  HOME. 

Funds  for  Soi-     1729.  For  the  support  of  the  Soldiers'  Home  the  following 

diers'  Home.  -.1*11 

Mar.  a,  1851,  c.  funds  are  set  apart,  and  are  hereby  appropriated:  All 
July  £'  1862,  c!  stoppages  or  fines  adjudged  against  soldiers  by  sentence  of 
SOB.  Rt  >v     ' P  courts-martial,  over  and  above  any  amount  that  maybe 
sec.  4818,  R.S.  due  for  the  re.jmkursemeilt  of  Government,  or  of  individ- 
uals j  all  forfeitures  on  account  of  desertion ;  and  all  moneys 
belonging  to  the  estates  of  deceased  soldiers,  which  are  or 
may  be  unclaimed  for  the  period  of  three  years  subsequent 
to  the  death  of  such  soldiers,  to  be  repaid  by  the  commis- 
sioners of  the  institution,  upon  the  demand  of  the  heirs  or 
legal  representatives  of  the  deceased.2 

Deduction  from     1739.  There  shall  be  deducted  from  the  pay  of  every  non- 
Mar.  3,  i85i,  c.  commissioned  officer,  musician,  artificer,  and  private  of  the 

25,  s.7,  v.  9,  p.  596; 

Mar.  3, 1859,  c.  83, 

8. 7,  v.  11,  p.  434.  i  Section  4824,  Revised  Statutes,  subjecting  the  inmates  of  the  Soldiers'  Home  to 
Sec.  4819,  R.S.  the  Rules  and  Articles  of  War,  is  unconstitutional  and  a  dead  letter.  These  inmates 
are  no  part  of  the  Army,  nor  are  they  supported  by  the  United  States.  They  are 
civilians  occupying  dwellings  and  sustained  by  funds  held  in  trust  for  them.  The 
territory  of  the  Home  being  within  the  District  of  Columbia,  and  not  having  been 
exempted  by  Congress  from  the  operation  of  the  criminal  laws  of  the  District,  the 
inmates  are  subject  to  those  laws  like  any  other  residents.  [Compare  opinion  of 
Attorney- General  in  20  Opins.,  514.]  (Dig.  J.  A.  Gen.,  p.  705,  par  2.) 

The  inmates  of  the  Soldiers'  Home  wear  the  uniform  of  soldiers  of  the  Army. 
They  are  therefore  within  the  operation  of  section  1181  of  the  Revised  Statutes 
relating  to  the  District  of  Columbia,  which  makes  penal  the  selling  of  liquor  to 
persons  wearing  the  uniform  of  soldiers.  (Ibid.,  p.  705,  par.  3.) 

2  The  funds  for  the  support  of  the  Soldiers'  Home  are  not  of  the  class  of  public 
moneys  annually  appropriated  for  a  specific  object,  as  for  the  pay  of  the  Army,  but 
a  special  trust  fund  committed  to  and  administered  by  the  Hoard  of  Commissioners 
for  the  benefit  of  the  institution.  From  an  early  period  in  the  history  of  the  Home 
it  has  been  the  usage  for  the  commissioners  to  permit  the  officers  of  the  Home 
(retired  officers  of  the  Army  residing  at  the  Home)  gratuitously  to  receive  and  use 
a  reasonable  portion  of  the  ordinary  supplies  of  fuel,  light,  forage,  milk,  ice,  and 
vegetables,  either  produced  at  the  Home  or  obtained  for  its  consumption.  Held  that 
such  allowance  was  not  in  contravention  of  law;  that  the  articles  thus  issued  are 
not  of  the  class  of  military  pay  and  emoluments,  and  therefore  unauthorized  because 
not  allowed  by  law  to  retired  officers,  but  are  a  reasonable  share  of  the  supplies  for 
the  use  and  benefit  of  the  Home,  the  disposition  of  which  is  properly  within  the  dis- 
cretion of  the  commissioners  as  trustees  of  the  funds  of  the  Home  and  as  charged 
by  law  with  the  "government  and  interests  of  the  same."  And  similarly  held  in 
regard  to  the  amount  of  $1,000,  allowed  annually  out  of  such  funds  to  the  treasurer 
of  the  Home,  as  a  compensation  for  his  special  services  and  in  consideration  of  his 
pecuniary  responsibility  as  a  bonded  officer.  [See  concurring  opinion  of  Attorney- 
General,  in  20  Opins.,  350.]  (Ibid.,  p.  706,  par.  6.) 

Section  4818,  Revised  Statutes,  appropriates  as  one  of  the  funds  for  the  support  of 
the  Soldiers'  Home  "all  forfeitures  on  account  of  desertion."  Held  that  this  appro- 
priation included  the  retained  pay  of  soldiers,  as  forfeited  by  desertion  under  the 


pay 


provisions  of  sections  1281  and  1282,  Revised  Statutes,  and  of  the  act  of  June  16, 
1890,  chapter  426,  section  1.  The  retained  pay  is  merely  a  fraction  of  the  monthly 
pay  of  the  soldier,  earned  with  the  rest  of  his  monthly  pay,  as  a  part  of  the  entire 
consideration  for  service  rendered,  but  of  which  the  payment— the  right  to  receive— 
is  deferred.  The  theory  that  it  is  not  to  be  regarded  as  earned  till  the  soldier's  serv- 
ice is  concluded  and  he  receives  an  honorable  dis 


discharge,  is  rebutted  by  the  statu- 
tory provisions  above  cited,  and  especially  by  the  provision  of  the  act  of  1890,  which 
treats  the  retained  pay  as  pay  constantly  accruing  and  as  a  continuing  deposit  for 
the  use  of  the  soldier,  drawing  interest  from  the  end  of  each  year  in  which  it  accrues. 
The  ruling  of  the  Supreme  Court  in  United  States  v.  Landers  (92  U.S. ,77)  is  not 
opposed  to  this  view,  but,  as  construed  by  the  same  court  in  United  States  v.  Kings- 
ley  (138  U.  S.,  87),  shows  that  the  "forfeiture"  referred  to  in  sections  1281  and  1282, 
Revised  Statutes,  was  regarded  by  the  court  as  meaning  a  loss  of  an  acquired  right. 
And  the  act  of  1890,  passed  since  this  ruling,  has  confirmed  this  interpretation. 
Thus  a  soldier,  in  deserting,  forfeits,  with  the  main  portion  of  his  pay,  the  portion 
which  has  been  retained,  his  right  to  this  lesser  portion  being  as  much  acquired  and 
perfected  as  his  right  to  the  greater  portion.  Both  forfeitures  rest  upon  the  same 
basis,  and  the  aggregate  forfeiture  of  both  is  appropriated  by  the  statute  to  the 
support  of  the  Soldiers'  Home.  (Ibid.,  706,  par.  8.) 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  649 

Army  of  the  United  States  the  sum  of  twelve  and  a  half 
cents  per  month,  which  sum  so  deducted  shall,  by  the  Pay 
Department  of  the  Army,  be  passed  to  the  credit  of  the 
commissioners  of  the  Soldiers'  Home.  The  commissioners 
are  also  authorized  to  receive  all  donations  of  money  or 
property  made  by  any  person  for  the  benefit  of  the  institu- 
tion, and  hold  the  same  for  its  sole  and  exclusive  use.  But 
the  deduction  of  twelve  and  a  half  cents  per  month  from 
the  pay  of  non-commissioned  officers,  musicians,  artificers, 
and  privates  of  regiments  of  volunteers,  or  other  corps  or 
regiments  raised  for  a  limited  period,  or  for  a  temporary 
purpose  or  purposes,  shall  only  be  made  with  their  con- 
sent. 

1731.  That  all  funds  of  the  Home  not  needed  for  current  +1ru°d8'  etc-><>f 

the  Home  to  be 

use,  and  which  are  not  now  invested  in  United  States  regis-  deposited  in  the 

Treasury  United 

tered  bonds,  shall,  as  soon  as  received,  or  as  soon  as  present  states  as  a  per- 

,      manent  fund. 

investments  can  be  converted  into  money  without  loss,  be    sec.  s,  Mar.  s, 

1883  v  22  T>  ^6^ 

deposited  in  the  Treasury  of  the  United  States  to  the  credit 

of  the  Home,  as  a  permanent  fund,  and  shall  draw  interest    interest. 

at  the  rate  of  three  per  centum  per  annum,  which  shall  be 

paid  quarterly  to  the  treasurer  of  the  Home;  and  the  pro- 

ceeds of  such  registered  bonds,  as  they  are  paid,  shall  be 

deposited  in  like  manner.    No  part  of  the  principal  sum  so    Principal  sum 

deposited  shall  be  withdrawn  for  use  except  upon  a  resolu  by 


tion  of  the  board  of  commissioners  stating  the  necessity  board'  etc' 
and  approved  by  the  Secretary  of  War.     Sec.  5,  act  of  March 
3,  1883  (22  Stat.  L.,  565}. 

1732.  That  no  officers  of  the  Home  shall  borrow  any    Borrowing 

,,  -,..        f,   ,-,         rr  ,,  money  on  credit 

money  on  the  credit  of  the  Home  for  any  purpose,  nor  of  Home  prohib- 


shall  any  pledge  of  any  of  its  property  or  securities  for  any  ltesec.  9,  Mar.  3, 
purpose  be  valid.  Sec.  9,  act  of  March  5,  1883  (22  Stat.  L.,  1883'  V-22'P-565- 
565). 


1733.  That  the  Treasurer  of  the  United  States  be,  and  he    v*ite&  states 

Treasurer  to  be 

is  hereby,  authorized  and  directed  to  receive  and  keep  on  custodian  of 

deposit,  subject  to  the  checks  or  drafts  of  the  treasurer  of  ujan!  i«,iW,v, 

the  Soldier's  Home  in  the  District  of  Columbia,  all  funds 

which  may  now  be  under  the  control  of  the  said  Treasurer 

of  the  Soldier's  Home,  or  may  hereafter  be  furnished  him 

or  in  any  manner  come  into  his  possession  for  use  in  defray- 

ing the  current  expenses  of  maintaining  the  said  Soldiers7 

Home,  and,  upon  the  request  of  said  treasurer  of  the  Sol- 

diers' Home,  there  shall  be  transferred,  from  funds  to  his    Transfer  of 

credit  with  the  United  States  Treasurer,  and  placed  to  ant  t8rea0sur 

his  credit  with  the  assistant  treasurer  of  the  United  States  N< 

in  New  York  City,  New  York,  such  sums  as  he  may  require 

monthly  or  quarterly  for  payments  on  account  of  u  out-door 


650  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

relief"  to  members  of  the  said  Soldiers'  Home  residing  at  a 
distance  therefrom.1  Act  of  January  16,  1891  (26  Stat.  L., 
718). 

MISCELLANEOUS  PROVISIONS. 

Expenditures     1734.  That  no  new  buildings  shall  be  erected  or  new 


iton'  approval  grounds  purchased,  nor  shall  any  expenditure  of  more  than 


iea,  how  five  thousand  dollars  be  made,  until  the  action  of  the  board 
pusrec  a386Mar.  3,  thereon  shall  be  approved  by  the  Secretary  of  War.     All 
1883,  v.  22,  P.  565.  guppye8  that  can  be  purchased  upon  contract  shall  be  so 
purchased,  after  due  notice  by  advertisement,  of  the  low- 
est responsible  bidder.     Such  bidder  shall  give  bond,  with 
proper  security,  for  the  performance  of  his  contract.     Sec. 
3,  act  of  March  3,  1883  (22  Stat.  L.,  56.5). 
Liquor  licenses     1735.  That  on  and  after  the  passage  of  this  act  no  license 

prohibited  with-  »         /»   •     j        «       i-  T  i  -.1  • 

m  i  mile  of  Soi-  for  the  sale  of  intoxicating  liquor  at  any  place  within  one 
'  mile  of  the  Soldiers'  Home  property  in  the  District  of  Co- 
>  v'  lumbia  shall  be  granted.     Act  of  February  23,  1891  (26  Stat. 


L.,  797). 
Appropriation     1736.  That  the  sum  of  ten  thousand  dollars  is  hereby 

for  clerical  labor 

in  adjusting  ac-  appropriated  out  of  any  money  in  the  Treasury  not  other- 
sec.i2,Mar.  3,  wise  appropriated  to  be  expended  by  the  Secretary  of  the 
Treasury  in  the  employment  of  additional  clerical  force  to 
be  used  in  adjusting  the  accounts  in  the  Treasury  Depart- 
ment of  those  funds  which  under  the  law  belong  to  the 
Soldiers'  Home.2  Sec.  12,  act  of  March  3,  1883  (22  Stat.  L., 
566). 

1  Contracts  for  the  Home  should  be  entered  into,  not  by  the  "Soldiers'  Home," 
which  is  not  an  incorporated  institution,  but  by  the  Board  of  Commissioners,  who, 
as  trustees  for  the  Home,  may  make  contracts  which  will  bind  the  United  States. 
(Dig.  J.  A.  Gen.,  706,  par.  5.) 

2  Section  11  of  the  act  of  March  3,  1883  (22  Stat.  L.,  p.  565),  contains  the  provision 
"  that  all  laws  and  parts  of  laws  relating  to  the  Soldiers'  Home  now  in  force  and  not 
inconsistent  with  this  act  are  continued  in  force,  and  such  as  are  inconsistent  here- 
with are  to  that  extent  repealed." 


CHAPTER 


THE  NATIONAL   HOME   FOR   DISABLED  VOLUN- 
TEER SOLDIERS. 


Par. 

1737-1742.  Board  of  Managers. 

1743-1745.  Estimates  and  appro- 
priations. 

1746-1754.  Expenditures  and  ac- 
counts. 

1755.  Inspections. 

1756-1760.  Officers. 

1761.  Establishment  of  Branch 
Homes. 


Par. 

1762.  Admissions. 
1763-1765.  State    and    Territorial 

homes. 

1766, 1767.  Pensions  to  inmates. 
1768.  Outdoor  relief. 
1769-1774.  Miscellaneous      provi- 
sions. 


BOARD   OF  MANAGERS. 

1737.  The  President.  Secretary  of  War.  Chief  Justice,    organization 

f  'of   the   National 

and  such  other  persons  as  have  been  or  from  time  to  time  Home  for  Dis- 
may be  associated  with  them,  shall  constitute  a  board  of  soldiers.0  u 
managers  of  an  establishment  for  the  care  and  relief  of  21,  s!T,'v.i4!8p6io| 
the  disabled  volunteers  of  the  United  States  Army,  to  be 
known  by  the  name  and  style  of  uThe  National  Home  for 
Disabled  Volunteer  Soldiers,"  and  have  perpetual  succes- 
sion,  with  powers  to  take,  hold,  and  convey  real  and  j>er- 
sonal  property,  establish  a  common  seal,  and  to  sue  and 
be  sued  in  courts  of  law  and  equity;  and  to  make  by-laws, 
rules,  and  regulations,  not  inconsistent  with  law,  for  carry- 
ing on  the  business  and  government  of  the  home,  and  to 
affix  penalties  thereto. 

1738.  Eleven  managers  of  the  National  Home  for  Dis-    Election  of  cit- 
abled  Volunteers  shall  be  elected  from  time  to  time,  as  1ZMar.  SffSS'c. 


sec.  4825,  B.S. 


vacancies  occur,  by  joint  resolution  of  Congress. 

shall  all  be  citizens  of  the  United  States,  and  all  residents  S.  liV 

of  States  which  furnished  organized  bodies  of  soldiers  tovsec.Pi826,R.s. 

aid  in  suppressing  the  rebellion  commenced  in  eighteen 

hundred  and  sixty  one;  and  no  two  of  them  shall  be  resi- 

dents of  the  same  State,  and  no  person  who  gave  aid  or 

countenance  to  the  rebellion  shall  ever  be  eligible.    The 

651 


652  THE   MILITARY   LAWS   OP   THE   UNITED   STATES. 

term  of  office  of  these  managers  shall  be  for  six  years,  and 
until  a  successor  is  elected.1 

1739«  Tbe  twelve  [fourteen |  managers  of  the  National 
Home  for  Disabled  Volunteer  Soldiers  shall  elect  from  their 

.  -,     o,     . 

?'*i\i!*>2s'OWH  number  a  president,  who  shall  be  the  chief  executive 

t)  All.  Jo  10/0,0.  Dlj 

s.  i.  v.  rrj>.  in.    officer  of  the  board,  two  vice-presidents,  and  a  secretary. 

"Seven  of  the  board,  of  whom  the  president  or  one  of  the 

vice-presidents  shall  be  one,  shall  form  a  quorum  for  the 

transaction  of  business  at  any  meeting  of  the  board.1 

Expenses  of     174Q.  That  hereafter  no  member  of  the  Board  of  Mana- 

Board  ot  Mana- 
gers, gers  of  the  National  Home  for  Disabled  Volunteer  Soldiers 

Aug.    18,  1894,  & 

v.  28,  p.  412.        shall  receive  any  compensation  or  pay  for  any  services  or 

Sec.  4828,  U.  S. 

duties  connected  with  the  Home;  but  the  traveling  and 
other  actual  expenses  of  a  member,  incurred  while  upon 
the  business  of  the  Home,  may  be  reimbursable  to  such 
member:  Provided,  That  the  president  and  secretary  of 
the  Board  of  Managers  may  receive  a  reasonable  compen- 
sation for  their  services  as  such  officers,  not  exceeding  four 
thousand  dollars  and  two  thousand  dollars,  respectively, 
per  annum.  Act  of  August  18,  1894  (28  Stat.  L.,  412}. 
o?Mana°era0ard  1^41.  The  board  of  managers  shall  make  an  annual  re- 
Mar  21,1866,  c.  port  of  the  condition  of  the  National  Home  for  Disabled 

21,  s.  8,v.  14,  p. 11 ;  L 

Jan. 23. 1873,0.51,  Volunteer  Soldiers  to  Congress  on  the  first  Monday  of 

sec. 4834, R. s. every  January;  and  the  board  shall  examine  and  audit 

the  accounts  of  the  treasurer  and  visit  the  home  quarterly. 

sh^w'TaiaTies0     ^42.  That  hereafter  the  statement  of  expenses  of  the 

etiu    s  1892  v  Board  of  Managers  of  the  National  Home  for  Disabled  Vol- 

27,pU384.'       v'  unteer  Soldiers  shall  each  year  be  submitted  in  the  annual 

book  of  estimates  and  shall  be  made  to  show  the  amount  of 

salary  or  compensation  paid  to  each  of  the  officers  and 

employees  of  said  Board,  and  there  shall  also  be  submitted 

therewith  a  statement  showing   the  number  of  officers 

appointed  at  each  of  the  Branch  Homes  under  Section 

four  thousand  eight  hundred  and  twenty-nine  of  the  Revised 

Statutes,  the  amount  of  salary  or  compensation  paid  to  each, 

and  the  amount  of  allowance  to  each,  if  any,  for  contingent 

or  other  expenses.2    Act  of  August  5,  1892  (27  Stat.  L.,  384). 

ESTIMATES  AND   APPROPRIATIONS. 

National  Home     1743.  That  so  much  of  the  act  entitled  "An  act  to  incor 
unteers.        "  porate  a  National  Military  and  Naval  Asylum  for  the  relief 
of  totally  disabled  officers  and  men  of  the  volunteer  forces 

1865,  c.  91,  s.  5,  of  the  United  States,"  approved  March  third,  eighteen  hun- 
peaiecHnpart™  dred  and  sixty-five,  and  of  all  acts  amendatory  thereof,  as 
18^359.' 18?5' v' provides  "that  for  the  establishment  and  support  of  said 

1  The  number  of  managers  to  be  elected  by  joint  resolution  of  Congress  was  fixed 
at  ten  by  section  3  of  the  act  of  March  3,  1887,  and  at  eleven  by  joint  resolution  No. 
21  of  MTarch  3,  1891  (24  Stat.  L.,  444;  26  Stat.  L.,  1117). 

2  See,  also,  paragraph  1752,  post. 


THE   MILITARY   LAWS   OF   THE   UNITED    STATES.  653 

asylum  there  shall  be  appropriated  all  stoppages  or  fines 
adjudged  against  officers  and  soldiers  by  sentence  of  court- 
martial  or  military  commission,  over  and  above  the  amounts 
necessary  for  the  re-imbursement  of  the  Government  or  of 
individuals ;  all  forfeitures  on  account  of  desertion  from 
the  service;  and  all  moneys  due  deceased  officers  and  sol- 
diers which  now  are  or  may  be  unclaimed  for  three  years 
after  the  death  of  such  officers  and  soldiers,"  be,  and  the 
same  is  hereby,  repealed,  to  take  effect  on  and  after  the 
first  day  of  April,  eighteen  hundred  and  seventy-five.  And 
from  and  after  April  first,  eighteen  hundred  and  seventy- 
five,  no  clerk  shall  be  employed  or  paid  in  any  Department 
of  the  Government  for  services  rendered  under  any  provi- 
sion  of  said  act  of  March  third,  eighteen  hundred  and 
sixty-five,  or  the  acts  amendatory  thereof.  And  from  and 
after  the  first  day  of  April,  eighteen  hundred  and  seventy- 
five,  no  money  shall  be  appropriated  or  drawn  for  the  sup- 
port and  maintenance  of  what  is  now  designated  by  law 
as  the  u  National  Home  for  Disabled  Volunteer  Soldiers," 
except  by  direct  and  specific  annual  appropriations  by 
law.1  Act  of  March  5,  1875  (18  Stat.  L.,  359). 

1744.  And  it  shall  be  the  duty  of  the  managers  of  saidH^PP°rt    of 
home,  on  or  before  the  first  day  of  August  in  each  year,  to 
furnish,  to  the  Secretary  of  War,  estimates,  in  detail,  for 
the  support  of  said  home  for  the  fiscal  year  commencing  on 
the  first  day  of  July  thereafter;  and  the  Secretary  of  War 
shall  annually  include  such  estimates  in  his  estimates  for    Estimates, 
his  Department.    And  no  moneys  shall,  after  the  first  day    Money;  how 
of  April,  eighteen  hundred  and  seventy-five,  be  drawn  from  rMar.'  3,  ISTS, 
the  Treasury  for  the  use  of  said  home,  except  in  pursuance  v' 
of  quarterly  estimates,  and  upon  quarterly  requisitions  by 
the  managers  thereof  upon  the  Secretary  of  War,  based 
upon  such  quarterly  estimates,  for  the  support  of  said  home 
for  not  more  than  three  months  next  succeeding  such  requi- 
sition.   And  no  money  shall  be  drawn  or  paid  upon  any 
such  requisition  while  any  balance  heretofore  drawn  or 
received  by  said  home,  or  for  its  use,  from  the  Treasury, 
under  the  laws  now  or  heretofore  existing,  and  now  held 
under  investment  or  otherwise,  shall  remain  unexpended. 
And  the  managers  of  said  home  shall,  at  the  cominence- 

JThis  statute  repealed  and  replaced  section  4831,  which  provided  that  "for  the 
establishment  and  support  of  the  National  Home  for  Disabled  Volunteer  Soldiera 
there  shall  be  appropriated  all  stoppages  or  fines  adjudged  against  such  officers  and 
soldiers  by  sentence  of  court-martial  or  military  commission,  over  and  above  the 
amounts  necessary  for  the  reimbursement  of  the  Government  or  of  individuals;  all 
forfeitures  on  account  of  desertion  from  such  service;  and  all  moneys  due  such 
deceased  officers  and  soldiers,  which  now  are  or  may  be  unclaimed  for  three  years 
after  the  death  of  such  officers  and  soldiers,  to  be  repaid  upon  the  demand  of  the 
heirs  or  legal  representatives  of  such  deceased  officers  or  soldiers.  The  Board  of 
Managers  are  also  authorized  to  receive  all  donations  of  money  or  property  made  by 
any  person  or  persons  for  the  benefit  of  the  home,  and  to  hold  or  dispose  of  the 
aame  for  its  sole  and  exclusive  use." 


654  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 

ment  of  each  quarter  of  the  year,  render  to  the  Secretary 
of  War  an  account  of  all  their  receipts  and  expenditures  for 
the  quarter  immediately  preceding,  with  the  vouchers 
for  such  expenditures;  and  all  such  accounts  and  vouchers 

Receipts  and  shall  be  authenticated  by  the  officers  of  said  home  there- 
expenditures  to  . 

be  audited,  etc.  unto  duly  appointed  by  said  managers,  and  audited,  and 

allowed,  as  required  by  law  for  the  general  appropriations 

and  expenditures  of  the  War  Department.     Act  of  March 

3,  1875  (18  Stat.  L.,  359}. 

incidental  ex-     1745.  And  hereafter  the  estimates  for  the  support  of  the 
Aug.'  4,  1886,  Home  for  Disabled  Volunteer  Soldiers  shall  be  submitted 

by  items.1     Act  of  August  4,  1886  (21  Stat.  L.,  251). 

EXPENDITURES   AND   ACCOUNTS. 

Ma?e3di887ev      1746t  But  a11  of  the  expenditures  ofthe  said  Home,  includ- 


24,  p.  539.  ^g  the  expenses  of  the  Board  of  Managers,  shall  be  made 

subject  to  the  general  laws  governing  the  disbursement  of 
public  moneys,  so  far  as  the  same  can  be  made  applicable 
thereto,  and  shall  be  audited  by  the  proper  accounting  offi- 
cers of  the  Treasury,  under  such  rules  and  regulations  as 
may  be  prescribed  by  the  Secretary  of  the  Treasury.2  Act 
of  March  3,  1887  (24  Stat.  L.,  539). 
of  ac-  1747.  That  the  accounts  relating  to  the  expenditure  of 


26Ma984  1891)  v'  sa^  sums?  as  a*so  a^  receipts  by  said  Home  from  whatever 
source,  shall,  in  addition  to  the  supervision  now  provided 
for,  be  reported  to  and  supervised  by  the  Secretary  of  War.3 
Act  of  March  3,  1891  (26  Stat.  L.,  981). 

1  See  also  the  act  of  March  3,  1879  (20  Stat.  L.,  390). 

2  The  act  of  June  20,  1878  (20  Stat.  L.,  223),  contained  the  requirement  "that  all 
purchases  of  supplies  exceeding  the  sum  of  one  thousand  dollars  at  any  one  time 
wliall  be  made  upon  public  tender  after  due  advertisement." 

Sections  of  the  actof  July  9,  1886  (24  Stat.  L.,  129),  contained  aprovision  that  "it 
shall  be  the  duty  of  the  Secretary  of  the  Treasury  to  require  from  the  president 
and  cashier  of  all  banks  used  as  depositories  by  the  treasurer  of  the  Home  a  deposit 
of  bonds  sufficient  in  amount  to  fully  secure  all  moneys  pertaining  to  said  Home  left 
on  deposit  with  any  such  bank." 

3  The  act  of  March  3,  1891,  chapter  542,  provides  that  "the  accounts  relating  to  the 
expenditure  of  such  sums  "  (appropriated  for  the  support  of  the  Volunteer  Home),  "as 
also  all  receipts  by  said  Home  from  whatever  source,  shall,  in  addition  to  the  super- 
vision now  provided  for,  be  reported  to  and  supervised  by  the  Secretary  of  A\7ar." 
Held  (December,  1891)  that  this  provision  called  for  an  examination  of  the  accounts 
by  the  Secretary  with  a  view  to  the  correction  of  errors  or  unauthorized  uses  of  the 
funds,  and  a  formal  approval  in  case  none  such  were  discovered;  alspthat  by  the  term 
"receipts"  were  included  receipts  not  only  from  outside  but  from  interior  sources  — 
as  from  the  sale  of  flowers  and  provisions—  'so  long  as  such  continued  to  accrue.    (Dig. 
J.  A.  Gen.  ,743,  par.  1.) 

By  t  he  more  recent  act  of  March  3,  1893,  (a)  it  is  provided  that  '  '  the  Secretary  of  War 
shall  hereafter  exercise  the  same  supervision  over  all  receipts  and  disbursements  on 
account  of  the  Volunteer  Soldiers'  Homes  as  he  is  required  by  law  to  apply  to  the 
accounts  of  disbursing  officers  of  the  Army."  J2eM(April,  1893)  thatthe  supervision 
here  i  ndicated  should  be  analogous  to  that  prescribed  by  the  act  of  .A  pril  20,  1874,  chap- 
ter 117,  entitled  "An  act  to  provide  for  the  inspection  ofthe  disbursements  of  appro- 
priations made  by  officers  of  the  Army,"  and  should  be  regulated  by  the  provisions 
of  Titles  LVIII  and  LXXII  of  the  Army  Regulations  so  far  as  applicable.  (Ibid, 

Held  later  (December,  1893)  that  certain  projected  legislation  proposing  to  vest  in 
the  Secretary  of  War  a  general  supervision—  that  is  to  say,  superintendence,  direc- 
tion, and  control  of  all  the  affair*  of  the  National  Volunteer  Homes—  would  be  in 
direct  conflict  with  the  existing  provision  of  section  4825.  Revised  Statutes,  fixing 
and  defining  the  corporate  powers  of  "The  National  Home  for  Disabled  Volunteer 
Soldiers;"  and  that  if  such  legislation  be  adopted  it  should  properly  provide  for  a 
repeal  of  so  much  of  this  section  as  gives  the  corporation  control  of  its  affairs.  It 
may,  indeed,  well  be  questioned  whether  the  recent  provision  of  March  3,  1893,  chap. 

a  Par.  584,  ante. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES  655 

1748.  That  all  purchases  of  supplies  exceeding  the  sum  8uPu^a8e    of 
of  one  thousand  dollars  at  anyone  time  shall  be  made    Mar.  3, 1379,  v. 
upon  public  tender  after  due  advertisement,  and  that  the  ni  1896,  V.  29"  p6 
expenditure  for  new  buildings  shall  be  expressly  author-    Newbuiidings. 
ized  in  writing.     Act  of  March  3,  1879  (20  Stat.  L.,  390).  168'etc' 
That  hereafter,  upon  proper  application  therefor,  the  Med- 
ical Department  of  the  Army  is  authorized  to  sell  medical 

and  hospital  supplies,  at  its  contract  prices,  to  the  National 
Home  for  Disabled  Volunteer  Soldiers.  Act  of  June  11, 
1896  (29  Stat.  L.,  445). 

1749.  That  all  sums  received  from  sales  of  subsistence    Receipts  from 
stores  or  other  property  of  the  National  Home  for  Disabled    Aug.  is,  i894,v. 
Volunteer  Soldiers  shall  be  taken  up  by  the  disbursing 

officer  under  the  proper  current  appropriation  and  be 
available  for  disbursement  on  account  of  that  appropria- 
tion. Act  of  August  18,  1894  (28  Stat.  L.,  412). 

1750.  That  all  amounts  disbursed  from  the  appropriation    Accounts. 
of  a  Branch  Home  shall  be  disbursed  and  accounted  for  28,  Pufii. ' 
monthly  to  the  general  treasurer  by  the  treasurer  of  that 
Branch,  except  such  expenditures  for  services,  stationery, 
tableware,  clothing  and  bedding"  as  may  be  required  by  the 
Board  of  Managers  to  be  legally  made  by  the  general  treas- 
urer, and  all  such  stationery,  tableware,  clothing  and  bed-  % 
ding  as  may  be  required  for  each  Branch  Home  shall  be 
shipped  directly  from  the  place  of  purchase  or  manufacture 

to  such  Branch  Home ;  and  all  disbursements  shall  be  made    Disburse- 
in  conformity  with  Sections  thirty-six  hundred  and  seventy- 
eight  and  thirty-six  hundred  and  seventy-nine,  Ee vised 
Statutes:1  Provided  further,  That  the  balance  of  the  post-    use  of  post- 
humous fund,  including  the  amount  invested  in  bonds  per- 
taining to  that  fund,  that  may  be  in  the  hands  of  the 
treasurer  of  any  Branch  of  the  Home  on  July  first,  eighteen 
hundred  and  ninety-four,  shall  be  transferred  to  the  ap- 
propriation for  "current  expenses,  eighteen  hundred  and 
ninety- five,"  of  that  Branch  Home,  and  thereafter  all  re-    Receipts  from 
ceipts  on  account  of  the  effects  of  deceased  members  shall  ber»atodbe  'cmi- 
be  credited  to  the  appropriation  for  "current  expenses"  of  ™1 

the  fiscal  year  during  which  such  amounts  were  received, 
and  all  repayments  of  such  amounts  shall  be  made  from 
and  charged  to  the  like  appropriation  for  the  fiscal  year  in 
which  such  repayments  shall  be  made.  Act  of  August  18, 
1894  (28  Stat.  L.,  411). 

ter  210,  giving  the  Secretary  of  War  ' '  supervision  over  all  receipts  and  disbursements 
on  account  of  the  Volunteer  Soldiers'  Homes,"  does  not  vest  him  with  an  authority 
greater  than  is  consistent  with  the  said  corporate  powers.  (Ibid.,  par.  3.) 

1  Under  this  provision  the  expenses  of  inspecting  goods  purchased  for  the  Home 
are  properly  chargeable  as  an  incident  of  the  cost  of  such  goods,  and  payable  out  of 
the  appropriation  lor  their  purchase,  in  the  absence  of  a  specific  appropriation  for 
inspection.  (2  Compt,  Dec.,  522.) 


656  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

Balances  of  ap-     1751.  And  hereafter  the  provisions  of  section  thirty-six 

propriations,  dis- 

posal of.  hundred  and  ninety  and  thirty-six  hundred  and  ninety-one 

25,  p.  543.  of  the  Eevised  Statutes  of  the  United  States  shall  apply 

to  all  appropriations  made  for  the  maintenance  of  the 

National  Home  for  Disabled  Volunteer  Soldiers.     Act  of 

October  2,  1888  (25  Stat.  L.,  543): 

Detailed  state      1752.  Hereafter  the  detailed  statement  of  the  expenses 
mitted.  of  the  Board  of  Managers  of  the  National  Home  for  Disa- 

24,  p?539.'       v'  bled  Volunteer  Soldiers  shall  be  reported  direct  to  Congress 

in  the  annual  report  of  the  Board  of  Managers.1    Act  of 
March  3,  1887  (24  Stat.  L.,  539). 
Estimates.          1753.  That  it  shall  be  the  duty  of  the  managers  of  said 

Of*t     2    1  ftftfi    v 

25,  p.  543.  Home,  on  or  before  the  first  day  of  October  in  each  year, 

to  furnish  to  the  Secretary  of  War  estimates,  in  detail,  for 
the  support  of  said  Home  for  the  fiscal  year  commencing 
on  the  first  day  of  July  thereafter,  and  the  Secretary  of 
War  shall  annually  include  such  estimates  in  his  estimates 
for  his  Department.2  Act  of  October  2,  1888  (25  Stat.  L., 
543). 
Detailed  esti-  1754.  That  the  estimates  hereafter  submitted  for  the  sup- 

mates. 


oMa39o'  18?9'  v'  Por  fc  °^  ^ne  ^ati°Dal  Hoine  shall  be  made  in  detail,  specify- 
ing the  several  items  of  expenditure,  and  separating  the 
cost  of  food  and  other  supplies  in  the  form  usually  adopted 
for  the  Army,  and  that  tbis  specification  be  made  for  each 
soldiers'  home  separately.  Act  of  March  3,  1879  (20  Stat. 
L.,  390). 

INSPECTIONS. 

inspections.        1755.  That  hereafter,  once  ir  each  fiscal  year,  the  Secre- 

Aiiff     18    1894 

v.  28,  p.  412.  '  tary  of  War  shall  cause  a  thorongh  inspection  to  be  made 
of  the  National  Home  for  Disabled  Volunteer  Soldiers,  its 
records,  disbursements,  management,  discipline,  and  con- 
dition, such  inspection  to  be  made  by  an  officer  of  the 
Inspector-General's  Department,  who  shall  report  thereon 
in  writing,  and  said  report  shall  be  transmitted  to  Con- 
gress at  the  first  session  thereafter.  Act  of  August  18, 
1894  (28  Stat.  L.,  412). 

OFFICERS   OF   THE   NATIONAL   HOME. 

officers.  1756  The  omcers  of  the  National  Home  shall  consist  of 

a  governor,  a  deputy  governor,  a  secretary,  a  treasurer, 
and  such  other  officers  as  the  managers  may  deem  neces- 

Quaiification.   sary.     They  shall  be  appointed  from  honorably  discharged 

Apr.  11,  1892,  v.       ,j,  .,   .       ,.        .  ..         . 

27,  p.  is.  soldiers  who  served  as  mentioned  in  the  following  section: 

Sec.  4829,  R.S.  ___  •      _  __ 

1  See,  also,  paragraph  1742,  ante. 

2  The  act  of  March  3,1885  (23  Stat.  L.,  510),  had  contained  the  requirement  that 
"hereafter  there  shall  annually  be  submitted  to  the  Secretary  of  War  a  detailed 
statement  of  the  expenses  of  the  Board  of  ilanagers  of  the  National  Home  lor  Dis- 
abled Volunteer  Soldiers,  who  shall  submit  the  same  to  Congress  at  the  beginning 
of  each  session  thereof." 


THE   MILITARY   LAWS   OP    THE   UNITED    STATES.  657 

and  they  may  be  appointed  and  removed,  from  time  to  time, 
as  the  interests  of  the  institution  may  require,  by  the 
Board  of  Managers.  Act  of  April  11,  1892  (27  Stat.  L.,  15). 

1757.  That  the  Board  of  Managers  shall  classify  all  the    Ratesof  payto 
officers  and  employees  of  the  National  Home  for  Disabled    Aug.  is,  1394,  v. 

28  p  412 

Volunteer  Soldiers  and  establish  a  rate  of  pay  and  allow- 
ance for  each  class,  and  the  rate  so  established  shall  not 
be  increased  by  fees,  perquisites,  allowances,  or  advantages 
under  any  pretense  whatever  ;  and  no  employee  shall  be 
borne  on  more  than  one  pay  roll  or  voucher.1  Act  of  August 
18,  1894  (28  Stat.  L.,  412). 

1758.  That  no  person  shall  be  eligible  to  or  hold 


tion  or  employment  in  the  government  or  management  of  with  liquor 
any  home  who  is  interested  in  or  connected  with,  directly    Mar.  S.ISST.V. 
or  indirectly,  any  brewery,  dram-  shop,  or  distillery  in  the24'1*'540' 
State  where  such  home  is  located.    Act  of  March  3,  1887 
(24  Stat.  L.,  540). 

1759.  The  general  treasurer  shall  give  good  and  sufficient    Bond  of  gen- 

,          -i    ,       ,1        TT     -.L     i   0.1  •  j_  i  JT  -i  eral  treasurer. 

bond  to  the  United  States  in  a  sum  not  less  than  one  hun-    Aug.  is,  1394,  v. 
dred  thousand  dollars,  as  the  Secretary  of  War  may  direct,    '  p'41  ' 
and  to  be  approved  by  him,  faithfully  to  account  for  all 
public  moneys  and  property  which  he  may  receive,  and  the 
treasurers  of  the  several  Branch  Homes  shall  give  good 
and  sufficient  bonds  to  the  general  treasurer  in  such  sums 
as  he  may  require,  and  to  be  approved  by  him,  faithfully  to 
account  for  all  public  moneys  and  property  which  they  may 
receive.    Act  of  August  18,  1894  (28  Stat.  L.,  412). 

1760.  That  when  an  officer  of  the  National  Home  for  Dis-  e^J®}^gceerg" 
abled  Volunteer  Soldiers,  not  a  member  of  the  Board  jjf  pelug.°i8?i8M!vi 
Managers  thereof,  travels  under  orders  on  business  for  the 

Home  he  shall  be  allowed  seven  cents  in  lieu  of  all  other 
expenses  for  each  mile  actually  traveled,  distance  to  be 
computed  by  the  most  direct  through  route  Act  of  August 
18,  1894  (28  Stat.  L.,  412). 

'The  following  rates  of  pay  were  established  in  the  acts  of  August  18,1894  (28 
Stat  L.,  409),  and  March  2,  1895  (28  Stat.  L.,  952)  :  For  president  of  the  Board  of  Man- 
agers, four  thousand  dollars  ;  secretary  of  the  Board  of  Managers,  two  thousand 
dollars;  one  general  treasurer,  who  shall  not  be  a  member  of  the  Board  of  Managers, 
three  thousand  dollars;  one  inspector  general,  two  thousand  five  hundred  dollars; 
one  assistant  inspector-general,  two  thousand  dollars  ;  clerical  services  for  the  offices 
of  the  president  and  general  treasurer,  four  thousand  five  hundred  dollars;  mea 
senger  service  for  president's  office,  one  hundred  and  forty-  four  dollars;  messenge- 
service  for  secretary's  office,  fifty-two  dollars;  clerical  services  for  managers,  one 
thousand  five  hundred  dollars  ;  agents,  two  thousand  four  hundred  dollars  ;  for  travel- 
ing expenses  of  the  Board  of  Managers,  their  officers  and  employees,  eleven  thousand 
five  hundred  dollars  ;  for  outdoor  relief,  one  thousand  seven  hundred  and  fifty  dol- 
lars; for  rent,  medical  examinations,  stationery,  telegrams,  and  other  incidental 
expenses,  two  thousand  five  hundred  dollars;  in  all,  thirty-seven  thousand  eight 
hundred  and  forty-six  dollars. 

Tinder  authority  conferred  by  separate  statutes,  Branch  Homes  have  been  estab- 
lished at  the  following  places: 

The  Central  Branch,  at  Dayton,  Ohio. 

The  Northwestern  Branch',  at  Milwaukee,  Wis. 

The  Eastern  Branch,  at  Togus,  Me. 

The  Southern  Branch,  at  Hampton,  Va. 

The  Western  Branch,  at  Leaven  worth,  Kans. 

The  Pacific  Branch,  at  Santa  Monica,  Cal. 

The  Marion  Branch,  at  ALuriuu,  Ind. 

1919  -  42 


658  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


ESTABLISHMENT    OF   BRANCH   HOMES. 

1761-  Tbe  Board  of  Managers  shall  have  authority  to 
procure  from  time  to  time,  at  suitable  places,  sites  for  mili- 


id  i  n 


j  c        "    h°mes  f°r  a^  persons  serving  in  the  Army  of  the 

10-  Jan  is  Ye?!' ^n^e(^  States  a^  anv  ^me  in  ^ne  war  °f  the  rebellion,  not 
c,  5i,8.  i,v.'  17,  p!  otherwise  provided  for,  who  have  been  or  may  be  disquali- 
See.48303R.s.  fied  for  procuring  their  own  support  by  reason  of  wounds 
received  or  sickness  contracted  while  in  the  line  of  their 
duty  during  the  rebellion;   and   to  have  the  necessary 
buildings  erected,  having  due  regard  to  the  health  of  loca- 
tion, facility  of  access,  and  capacity  to  accommodate  the 
persons  entitled  to  the  benefits  thereof. 

ADMISSIONS   TO   THE   HOME. 

1762,  The  following  persons  only  shall  be  entitled  to  the 
l*  benefits  of  the  National  Home  for  Disabled  Volunteer 
2i^a7'v1i418p6ii  •  Soldiers,  and  may  be  admitted  thereto,  upon  the  recoin- 
456bv2^8™'  |°|;  mendation  of  three  of  the  board  of  managers,  namely : 
sTv3!?873*!?51'  "^  h°norakly  discharged  soldiers  and  sailors  who  served 
s.  5,  July  5,  in  the  war  of  the  rebellion,  and  the  volunteer  soldiers  and 

1884,  v.  23,  p.  121. 

k  Sec.  4832,  B.  s.  sailors  of  the  war  of  eighteen  hundred  and  twelve  and  of 
the  Mexican  war,  who  are  disabled  by  age,  disease  or 
otherwise,  and  by  reason  of  such  disability  are  incapable 
of  earning  a  living,  shall  be  admitted  into  the  Home  for 
Disabled  Volunteer  Soldiers:  Provided,  such  disability 
was  not  incurred  in  service  against  the  United  States.1 
Sec,  5,  act  of  July  5,  1884  (23  Stat.  L.,  121). 

STATE   AND   TERRITORIAL   HOMES. 

diSs^n^saiiOTs"     1763.  That  all  States  or  Territories  which  have  estab- 
Lom^s  fo?  State  lisuedj  or  which  shall  hereafter  establish,  State  homes  for 
2iAug^27.i888,v.  disabled  soldiers  and  sailors  of  the  United  States  who 
served  in  the  war  of  the  rebellion,  or  in  any  previous  war, 
who  are  disabled  by  age,  disease,  or  otherwise,  and  by 
reason  of  such  disability  are  incapable  of  earning  a  liv- 
ing, provided  such  disability  was  not  incurred  in  service 
against  the  United  States,  shall  be  paid  for  every  such 

'Section  2  of  the  act  of  March  2,  1887  (24  Stat.  L.,  444),  authorizing  the  estab- 
lishment of  a  branch  home  west  of  the  Rocky  Mountains,  contains  a  requirement 
"that  all  honorably  discharged  soldiers  and  sailors  who  served  in  the  regular  and 
volunteer  forces  of  the  United  States,  and  who  are  disabled  by  disease,  wounds,  or 
otherwise,  and  who  have  no  adequate  means  of  support,  and  by  reason  of  such  dis- 
ability are  incapable  of  earning  their  living,  shall  be  entitled  to  be  admitted  to  said 
Home  for  Disabled  Volunteer  Soldiers,  subject  to  like  regulations  as  they  are  now 
admitted  to  existing  branches  of  the  National  Home  for  Disabled  Volunteer  Soldiers." 

The  act  of  March  2,  1889  (25  Stat.  L.,  955),  authorizes  reduced  rates  to  be  given,  by 
transportation  companies,  to  inmates  of  the  National  Home,  "  including  those  about 
to  enter  and  those  returning  home  after  discharge,  under  arrangements  made  with 
the  Board  of  Managers  of  said  homes." 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      659 

disabled  soldier  or  sailor  who  may  be  admitted  and  cared 
for  in  such  home  at  the  rate  of  one  hundred  dollars  per 
annum.     The  number  of  such  persons  for  whose  care  any 
State  or  Territory  shall  receive  the  said  payment  under 
this  act  shall  be  ascertained  by  the  Board  of  Managers  of  aJS^iJatiJnai 
the -National  Home  for  Disabled  Volunteer  Soldiers,  under  £Jj™ee£  make 
such  regulations  as  it  may  prescribe,  but  the  said  State   sec.  4826,  R.  s. 
or  Territorial  homes  shall  be  exclusively  under  the  control 
of  the  respective  State  or  Territorial  authorities,  and  the 
Board  of  Managers  shall  not  have  nor  assume  any  man- 
agement or  control  of  said   State  or  Territorial  homes. 
The  Board  of  Managers  of  the  National  Home  shall,  how- 
ever, have  power  to  have  the  said  State  or  Territorial 
homes  inspected  at  such  times  as  it  may  consider  necessary,    inspection 
and  shall  report  the  result  of  such  inspections  to  Congress 
in  its  annual  report.     Act  of  August  27,  1888  (25  Stat.  L., 
450). 

1764.  That  the  sum  of  two  hundred  and  fifty  thousand   tPcpr2op^io2^ 
dollars,  or  so  much  thereof  as  may  be  necessary,  is  hereby  1888> v- 25-  P-  45°- 
appropriated,  out  of  any  money  in  the  Treasury  not  other- 
wise appropriated,  to  carry  out  the  provisions  of  this  act, 

and  payments  to  the  States  or  Territories  under  it  shall  be 

made  quarterly  by  the  said  Board  of  Managers  for  the 

National  Home  for  Disabled  Volunteers  to  the  officers  of 

the  respective  States  or  Territories  entitled,  duly  authorized 

to  receive  such  payments,  and  shall  be  accounted  for  as  are    Payments. 

the  appropriations  for  the  support  of  the  National  Home 

for  Disabled  Volunteer  Soldiers.     Sec.  2,  act  of  August  27, 

1888  (25  Stat.  L.,  450). 

1765.  That  hereafter  no  State  under  this  appropriation  ha^ates  to  pfty 
shall  be  paid  a  sum  exceeding  one-half  the  cost  of  main-    Mar.  2, 1889,  v. 
tenance  of  each  soldier  or  sailor  by  such  State.1    Act  of 

March  2,  1889  (25  Stat.  L.,  975). 

PENSIONS   TO   INMATES. 

1766.  All  pensions  payable,  or  to  be  paid  under  this  act,    Pensioners,^-" 

"  mates  of  the  Na- 

to  pensioners  who  are  inmates  of  the  National  Home  fortionai  Home  for 
Disabled  Volunteer  Soldiers  shall  be  paid  to  the  treasurer  teeSr  soldiers, 

,..-,,  . ,  how  paid. 

or  treasurers  ot  said  home,  upon  security  given  to  the  sat-    sec.  2,  Feb.  26, 
isfaction  of  the  managers,  to  be  disbursed  for  the  benefit  1881'V'21|P'31 
of  the  pensioners  without  deduction  for  fines  or  penalties 
under  regulations  to  be  established  by  the  managers  of 
the  home;  said  payment  to  be  made  by  the  pension  agent 

'Subsequent  acts  of  appropriation  contain  the  requirement "  that  one-half  of  any 
sum  or  sums  retained  by  State  homes  on  account  of  pensions  received  from  inmates 
shall  be  deducted  from  the  aid  herein  provided  for. ' ' 


660  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

upon  a  certificate  of  the  proper  officer  of  the  home  that 
the  pensioner  is  an  inmate  thereof  and  is  still  living.  Any 
balance  of  the  pension  which  may  remain  at  the  date  of 
the  pensioner's  discharge  shall  be  paid  over  to  him;  and 
in  case  of  his  death  at  the  home,  the  same  shall  be  paid  to 
the  widow  or  children,  or  in  default  of  either  to  his  Jegal 
representatives.1  Sec.  2,  act  of  February  26, 1881  (21  Stat. 
L.,  350). 

PENSIONS   TO   INMATES. 

Pensions,  etc.,     1767.  That  all  pensions  and  arrears  of  pensions  payable 

due   inmates    of 

National  Home  Or  to  be  paid  to  pensioners  who  are  or  may  become  in  mates 
treasurS-^etc.  °of  the  National  Home  for  Disabled  Volunteer  Soldiers  shall 
22^p!  322!  ^  be  paid  to  the  treasurers  of  said  home,  to  be  applied  by 
such  treasurers  as  provided  by  law,  under  the  rules  and 
regulations  of  said  home.  Said  payments  shall  be  made 
by  the  pension  agent  upon  a  certificate  of  the  proper  officer 
of  the  home  that  the  pensioner  is  an  inmate  thereof  on  the 
day  to  which  said  pension  is  drawn.  The  treasurers  of  said 
home,  respectively,  shall  give  security,  to  the  satisfaction 
of  the  managers  of  said  home,  for  the  payment  and  appli- 
cation by  them  of  all  arrears  of  pension  and  pension-moneys 
they  may  receive  under  the  aforesaid  provision.  And  sec- 
tion two  of  the  act  entitled  "An  act  making  appropriations 
for  the  payment  of  invalid  and  other  pensions  of  the  United 
States  for  the  fiscal  year  ending  June  thirtieth,  eighteen 
hundred  and  eighty-two,  and  for  deficiencies,  and  for  other 
purposes,"  approved  February  twenty-sixth,  eighteen  hun- 
dred and  eighty-one,  is  hereby  revived  and  continued  in 
force.  Act  of  August  7,  1882  (22  Stat.  L.,  322). 

OUTDOOR   BELIEF. 

Outdoor  relief.     1768.  The  Managers  of  the  National  Home  for  Disabled 

P.  937, 'amended.' Volunteer  Soldiers  are  authorized  to  aid  persons  who  are 

28,  pUJ492.'       v'  entitled  to  its  benefits  by  outdoor  relief,  in  such  manner 

and  to  such  extent  as  they  may  deem  proper,  but  such  relief 

shall  not  exceed  the  average  cost  of  maintaining  an  inmate 

trSerffnmdatesof  the  Home :  Provided,  That  in  the  event  that  buildings 

m^  case  of  fire,  at  any  Branch  of  the  Home  shall  be  destroyed  by  fire  or 

rendered  unfit  for  habitation  because  of  pestilence  or  by 

the  elements,  then  and  in  that  event  the  Board  of  Managers 

shall  have  authority  to  remove  the  members  of  said  Branch 

so  afflicted  or  destroyed  to  any  other  Branch  not  so  affected, 

and  to  do  this,  they  may  use  any  funds  appropriated  for  the 


xJFor  disposition  of  pension  in  case  of  an  insane  inmate  see  paragraph  1780  post. 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  661 

Home,  notwithstanding  they  may  have  been  specifically 
appropriated  for  other  purposes,  to  the  extent  that  such 
funds  shall  be  necessary  to  effect  such  a  transfer  and  the 
maintenance  and  support  thereafter  of  said  members  so 
transferred,  and  shall  report  their  doings  therein  to  the 
Congress  and  their  expenditures  as  in  other  cases  of  ex- 
penditures: Provided  further,  That  the  appropriations  for  ^4833  R  s 
any  fiscal  year  shall  not  be  exceeded.  Act  of  August  23, 
1894  (28  Stat.  L.,  492}. 

MISCELLANEOUS   PROVISIONS. 

1769.  All  inmates  of  the  National  Home  for  Disabled jeJnjteIrt°ciL 
Volunteer  Soldiers  shall  be  subject  to  the  Rules  and  Arti- 

cles  of  War,  and  in  the  same  manner  as  if  they  were 
the  Army.1  8-  *• v- 17-  P-  417- 

1770.  That  the  Secretary  of  War  be  directed  to  turn.  Bunding  for 

insane. 

over  to  the  managers  of  the  National  Home  for  Disabled  Mar.  3,  issi.v. 
Volunteer  Soldiers  all  the  old  clothing  now  held  for  issue 
to  the  National  Home.  Said  managers  are  authorized  to 
estimate  for  building  and  maintenance  at  the  Central 
Branch  of  a  building  or  buildings  for  the  safe  and  proper 
keepingof  the  insane.  Act  of  March  5, 1881  (21  Stat.  L.,  447). 

1771.  That  in  addition  to  the  persons  now  entitled  to  ad- „  insanepereous 

from     National 

mission  to  said  hospital,  any  inmate  of  the  National  Home  Home  for  Dis- 
abled Volunteer 

for  Disabled  Volunteer  Soldiers,  who  is  now  or  may  here- Soldier* to  be  «d- 

mitted,  etc. 

after  become  insane  shall,  upon  an  order  of  the  president  Aug.  7, 1882,  v. 
of  the  board  of  managers  of  the  said  National  Home,  be 
admitted  to  said  hospital  and  treated  therein ;  and  if  any 
inmate  so  admitted  from  said  National  Home  is  or  there- 
after becomes  a  pensioner,  and  has  neither  wife,  minor 
child,  nor  parent  dependent  on  him,  in  whole  or  part,  for 
support,  his  arrears  of  pension  and  his  pension  money 
accruing  during  the  period  he  shall  remain  in  said  hospital 
shall  be  applied  to  his  support  in  said  hospital,  and  be 
paid  over  to  the  proper  officer  of  said  institution  for  the 
general  uses  thereof.  Act  of  August  7,  1882  (22  Stat.  L., 
330). 

1772.  That  the  Secretary  of  War  be,  and  hereby  is,  au- 
thorized  and  directed,  subject  to  such  regulations  as  he 

'Section  4835,  Revised  Statutes,  providing  that  the  inmates  of  the  "National 
Home  for  Disabled  Volunteer  Soldiers  '  shall  be  "subject  to  the  Kules  and  Articles 
of  Wax,"  held  (1870)  to  be  clearly  an  unconstitutional  enactment,  such  inmates  not 
being,  and  having  never  been,  any  part  of  the  armies  of  the  United  States,  but 
civilians.  The  fact  that  they  had  once  been  members  of  the  volunteer  forces  could 
not  attach  to  them,  after  their  final  discharges,  any  amenability  to  the  military  juris- 
diction. In  but  a  single  case — that  described  in  Court  Martial,  II,  section  15,  ante — 
has  an  inmate  ever  been  made  amenable  to  trial  by  court-martial,  and,  in  that  case, 
upon  the  report  of  the  Judge- Advocate-General,  the  proceedings  were  declared  to  be 
void  ab  initio  and  wholly  inoperative  by  the  Secretary  of  War.  (Dig.  J.  A.  Gen., 
p.  744,  par.  4.) 


662  THE   MILITARY   LAWS   OP   THE   UNITED   STATES. 

Prescribe,  to  deliver  to  any  of  the  "National  Homes 


Fb8  1889  v  *°r  Disabled  Volunteer   Soldiers"  already  established  or 
25,  p.  65?'.  hereafter  established  and  to  any  of  the  State  Homes  for 

soldiers  and  sailors  or  either  now  or  hereafter  duly  estab- 
lished and  maintained  under  State  authority,  such  obsolete 
serviceable  cannon,  bronze  or  iron,  suitable  for  firing 
salutes,  as  may  be  on  hand  undisposed  of,  not  exceeding 
two  to  any  one  Home.  Act  of  February  8,  1889  (25  Stat. 
L.,  657). 

be^ruShed.  to     1773.  That  the  Secretary  of  the  Senate  and  the  Clerk  of 

28Jp.1i596'1894'v'tne  House  of  Eepresentatives  shall  cause  to  be  sent  to  the 

National  Home  for  Disabled  Volunteer  Soldiers  at  Dayton, 

Ohio,  and  to  the  branches  at  Togus  in  Maine,  Milwaukee 

in  Wisconsin,  Hampton  in  Virginia,  Marion  in  Indiana, 

Leavenworth  in  Kansas,  Santa  Monica  in  California,  and 

etc.tate    home8'  to  the  homes  for  the  widows  and  orphans  of  soldiers  and 

sailors  established  and  maintained  by  any  State  or  Terri- 

tory, and  all  soldiers  and  sailors'  homes  established  by  the 

authority  of  any  State  or  Territory  receiving  aid  from  the 

United    States  under  legislation  of  Congress,  each,  one 

sage*  WandmRec-  COPV  eacn  °^  ^ne  following  documents  :  The  session  laws  of 

sent°nly  to  be  Congress;    the  annual  messages  of  the  President,  with 

sec.  4837,  B.S.  accompanying  documents  in  the  abridgment  thereof  j  the 

daily  Congressional  Kecord;   and  the  Public  Printer  is 

hereby  authorized  and  directed  to  furnish  to  the  Secretary 

of  the  Senate  and  the  Clerk  of  the  House  of  Representa- 

tives the  documents  referred  to  in  this  section.    Act  of 

July  26  ',  1894'  (28  Stat.  L.,  159). 

be^ent  ?re?er  to     1774.  That  the  provisions  of  the  fifth  and  sixth  sections 

lug.'  pisf  1894,  of  tlie  Act  entitled  "An  Act  establishing  post-routes,  and 

v.  28,  p.  412.        for  other  purposes,  approved  March  third,  eighteen  hundred 

and  seventy-seven,"  for  the  transmission  of  official  mail- 

matter,  be,  and  they  are  hereby,  extended  and  made  appli- 

cable to  all  official  mail-matter  of  the  National  Home  for 

Disabled  Volunteer  Soldiers.    Act  of  August  18,  1894  (28 

Stat.  L.,  412). 


CHAPTER    XLII. 


THE  GOVEBNMENT  HOSPITAL  FOR  THE  INSANE. 


Par. 

1775.  Establishment  of  the  Gov- 

ernment Hospital  for  the 
Insane. 

1776.  The  superintendent. 

1777.  Admission  of  insane  persons 

of  the  Army,  Navy,  Ma- 
rine Corps,  etc. 


Par. 

1778.  Discharge  of  patients  upon 

bond. 

1779.  Disbursement  of  appropria- 

tions for  the  insane. 

1780.  Payment  of  pensions  to  in- 

mates. 


1775.  There  shall  be  in  the  District  of  Columbia  a  Gov- 


of 


eminent  Hospital  for  the  Insane,  and  its  objects  shall  be  ment  Hospital  for 
the  most  humane  care  and  enlightened  curative  treatment  Ma?83°i855.  c. 
of  the  insane  of  the  Army  and  Navy  of  the  United  States  JS:  *  *'  v'  10>  p' 
and  of  the  District  of  Columbia.  Sec.  4838,  R.S. 

1776.  The  chief  executive  officer  of  the  Hospital  for  the    The  superm- 
Insane  shall  be  a  superintendent,  who  shall  be  appointed  ^sSi  'ibid. 
by  the  Secretary  of  the  Interior,  and  shall  be  entitled  to  a21^aj-143'  18^'  v- 
salary  of  four  thousand  dollars  a  year,  and  shall  give  bond    sec.4s39,R.s. 
for  the  faithful  performance  of  his  duties,  in  such  sum 

and  with  such  securities  as  may  be  required  by  the  Sec- 
retary of  the  Interior.  The  superintendent  shall  be  a 
well-educated  physician,  possessing  competent  experience 
in  the  care  and  treatment  of  the  insane;  he  shall  reside 
on  the  premises,  and  devote  his  whole  time  to  the  welfare  of 
the  institution;  he  shall,  subject  to  the  approval  of  the  vis- 
itors, engage  and  discharge  all  needful  and  usual  employes 
in  the  care  of  the  insane,  and  all  laborers  on  the  farm,  and 
determine  their  wages  and  duties;  he  shall  be  the  respon- 
sible disbursing  agent  of  the  institution,  and  shall  be  ex- 
officio  secretary  of  the  board  of  visitors. 

1777.  The  superintendent,  upon  the  order  of  the  Secre-    Admission  of 
tary  of  War,  of  the  Secretary  of  the  Navy,  and  of  the  SSSS?[  Navyf 
Secretary  of  the  Treasury,  respectively,  shall  receive,  and^carine  Corp8' 
keep  in  custody  until  they  are  cured,  or  removed  by  the  same 
authority  which  ordered  their  reception,  insane  persons 

the  following  descriptions:    PP-93,94;  Mar.  3,  1375,  c.  ise,  8.  5,  v.  is,  P.  486.    Sec.  4843,s.  si 
First.  Insane  persons  belonging  to  the  Army,   Navy, 

Marine  Corps,  and  revenue-cutter  service. 

Second.  Civilians  employed  in  the  Quartermaster's  and 

Subsistence  Departments  of  the  Army  who  may  be,  or  may 

hereafter  become,  insane  while  in  such  employment. 

663 


664  THE    MILITARY    LAWS    OF    THE    UNITED    STATE'S. 

Third.  Men  who,  while  in  the  service  of  the  United  States, 
in  the  Army,  Navy,  or  Marine  Corps,  have  been  admitted 
to  the  hospital,  and  have  been  thereafter  discharged  from 
it  on  the  supposition  that  they  have  recovered  their  reason, 
and  have,  within  three  years  after  such  discharge,  become 
again  insane  from  causes  existing  at  the  time  of  such  dis 
charge,  and  have  no  adequate  means  of  support. 

Fourth.  Indigent  insane  persons  who  have  been  in  either 
of  the  said  services  and  been  discharged  therefrom  on 
account  of  disability  arising  from  such  insanity. 

Fifth.  Indigent  insane  persons  who  have  become  insane 
within  three  years  after  their  discharge  from  such  service, 
from  causes  which  arose  during  and  were  produced  by  said 
service.1 


p  o°n 


*  778.  If  anv  Per  son  wil1  &  ve  bond  witlx  sufficient  security, 
sec  9  ibid       to  be  approved  by  the  supreme  court  of  the  District  of 
sec.4856,R.s.  Columbia,  or  by  any  judge  thereof  in  vacation,  payable  to 
the  United  States,  with  condition  to  restrain  and  take  care 
of  any  independent  or  indigent  insane  person  not  charged 
with  a  breach  of  the  peace,  whether  in  the  hospital  or  not, 
until  the  insane  person  is  restored  to  sanity,  such  court  or 
judge  thereof  may  deliver  such  insane  person  to  the  party 
giving  such  bond. 

1779.  All  appropriations  of  money  by  Congress  for  the 
f°Mare  3?i855,'  c.  support  of  the  Hospital  for  the  Insane  shall  be  drawn  from 
199,  s.  7,  v.  10,  p.  .j.ne  Treasury  on  the  requisition  of  the  Secretary  of  the 
Sec**868'B>s*  Interior,  and  shall  be  disbursed  and  accounted  for  in  all 
respects  according  to  the  laws  regulating  ordinary  dis- 
bursements of  public  money.2 

pjKftiM*     178°-  If  any  inmate  of  the  Government  Hospital  for  the 

m^g7  1882  v  Insane  so  admitted3  from  said  National  Home  is  or  there- 

22,  p.  330.  after  becomes  a  pensioner,  and  has  neither  wife,  minor 

child,  nor  parent  dependent  on  him,  in  whole  or  in  part, 

for  support,  his  arrears  of  pension  and  his  pension  money 

accruing  during  the  period  he  shall  remain  in  said  hospital 

shall  be  applied  to  his  support  in  said  hospital  and  be  paid 

over  to  the  proper  officer  of  said  institution  for  the  general 

uses  thereof.    Act  of  August  7,  1882  (22  Stat.  L.,  330). 

1  The  right  to  admission  to  the  Asylum  has  been  extended  by  statute  to  include 
the  following  classes  of  cases  : 

(1)  To  insane  convicts  serving  sentences  of   confinement  imposed  by  United 
States  courts.     Act  of  June  23.  1874  (18  Stat.  L.,  251). 

(2)  To  persons  in  custody  charged  with  crime  against  the  United  States.    Act  of 
August  7,  1882  (22  Stat.  L.,'  202). 

(3)  To  inmates  of  the  several  branches  of  the  National  Home  for  Disabled  Vol- 
unteer Soldiers  who  may  become  insane.    Ant  of  August  7,  1882  (22  Stat.  L.,  302). 

(4)  To  inmates  of  the  Soldiers'  Home  who  may  become  insane.    Act  of  July  7, 
1884  (23  Stat.  L.,  194).    The  expense  of  maintenance  to  be  paid  from  the  Soldiers' 
Home  Fund. 

*  The  act  of  March  3,1881  (21  Stat.  L.,  458),  vests  the  supervision  of  tho  Asylum 
and  the  control  over  its  management  in  the  Secretary  of  the  Interior. 
*In  accordance  with  the  act  of  August  7,  1882.    See  note  1,  supra. 


CHAPTER    XLIII. 


NATIONAL   PAEKS. 


Par. 


Par. 

1825-1829.  The  Antietam  battle- 
iield. 

1830-1855.  The  Yellowstone  Na- 
tional Park. 

1856-1858.  Forest  reservations. 


1781, 1782.  General  provisions. 

1783-1799.  The  Chickamauga  and 
Chattanooga  National 
Military  Park. 

1790-1814.  The  Gettysburg  Na- 
tional Park. 

1815-1824.  The  Shiloh  National 
Military  Park. 

NATIONAL  MILITARY  PARKS. 

1781.  Tbat  in  order  to  obtain  practical  benefits  of  great    p>e  of  national 
value  to  the  country  from  the  establishment  of  national  for  maneuvers. 

,     ,      .  ,  ,          ,          May  15, 1896,  v. 

military  parks,  said  parks  and  their  approaches  are  hereby  29,  p.  120. 
declared  to  be  national  fields  for  military  maneuvers  for 
the  Begular  Army  of  the  United  States  and  the  National 
Guard  or  Militia  of  the  States :  Provided,  That  the  said 
parks  shall  be  opened  for  such  purposes  only  in  the  discre- 
tion of  the  Secretary  of  War,  and  under  such  regulations 
as  he  may  prescribe.  Act  of  May  15, 1896  (29  Stat.  L.,  120). 

1782.  That  the  Secretary  of  War  is  hereby  authorized,  w*J£S*3££jJ 
within  the  limits  of  appropriations  which  may  from  time  to  Butted0  be  in 
time  be  available  for  such  purpose,  to  assemble,  at  his  dis-    Sec.2,i&id. 
cretion,  in  camp  at  such  season  of  the  year  and  for  such 

period  as  he  may  designate,  at  such  field  of  military  ma- 
neuvers, such  portions  of  the  military  forces  of  the  United 
States  as  he  may  think  best,  to  receive  military  instruction 
there.  The  Secretary  of  War  is  further  authorized  to  make 
and  publish  regulations  governing  the  assembling  of  the 
National  Guard  or  Militia  of  the  several  States  upon  the 
maneuvering  grounds,  and  he  may  detail  instructors  from 
the  Eegular  Army  for  such  forces  during  their  exercises. 
Sec.  2,  ibid. 

665 


666  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

THE    CHICKAMAUGA    AND     CHATTANOOGA    NATIONAL 
MILITARY   PARK. 

Chickamauga     1783.  That  for  the  purpose  of  preserving  and  suitably 

and  Chattanooga  J 

National   Mill -marking  for  historical  and  professional  military  study  the 

luifed  ar        k    fields  of  some  of  the  most  remarkable  maneuvers  and  most 

conditions,      brilliant  fighting  in  the  war  of  the  rebellion,  and  upon  the 

jurisdiction.    ceding>  of  jurisdiction  to  the  United  States  by  the  States 

of  Tennessee  and  Georgia,  respectively,  and  the  report  of 

the  Attorney-General  of  the  United  States  that  the  title 

to  the  lands  thus  ceded  is  perfect,  the  following  described 

Highways  de-  highways  in  those  States  are  hereby  declared  to  be  ap- 

clared  ap- 
proaches to^and  proaches  to  and  parts  of  the  Chickamauga  and  Chatta- 
nooga National  Military  Park  as  established  by  the  second 
section  of  this  act,  to  wit :  First.  The  Missionary  Eidge 
26Au  3339' 1890>v'  Crest  road  from  Sherman  Heights  at  the  north  end -of 
Missionary  Eidge,  in  Tennessee,  where  the  said  road  enters 
upon  the  ground  occupied  by  the  Army  of  the  Tennessee 
under  Major-General  William  T.  Sherman,  in  the  military 
operations  of  November  twenty-fourth  and  twenty-fifth, 
eighteen  hundred  and  sixty- three;  thence  along  said  road 
through  the  positions  occupied  by  the  army  of  General 
Braxton  Bragg  on  November  twenty- fifth,  eighteen  hun- 
dred and  sixty-three,  and  which  were  assaulted  by  the 
Army  of  the  Cumberland  under  Major- General  George  H. 
Thomas  on  that  date,  to  where  the  said  road  crosses  the 
southern  boundary  of  the  State  of  Tennessee,  near  Eoss- 
ville  Gap,  Georgia,  upon  the  ground  occupied  by  the 
troops  of  Major-General  Joseph  Hooker,  from  the  Army  of 
the  Potomac,  and  thence  in  the  State  of  Georgia  to  the 
junction  of  said  road  with  the  Chattanooga  and  Lafayette 
or  State  road  at  Eossville  Gap ;  second,  the  Lafayette  or 
State  road  from  Eossville,  Georgia,  to  Lee  and  Gordon's 
Mills,  Georgia;  third,  the  road  from  Lee  and  Gordon's 
Mills,  Georgia,  to  Crawfish  Springs,  Georgia;  fourth,  the 
road  from  Crawfish  Springs,  Georgia,  t6  the  crossing  of  the 
Chickamauga  at  Glass'  Mills,  Georgia;  fifth,  the  Dry  Valley 
road  from  Eossville,  Georgia,  to  the  southern  limits  of  Mc- 
Farland's  Gap  in  Missionary  Eidge ;  sixth,  the  Dry  Valley 
and  Crawfish  Springs  road  from  McFarland's  Gap  to  the 
intersection  of  the  road  from  Crawfish  Springs  to  Lee  and 
Gordon's  Mills;  seventh,  the  road  from  Eingold,  Georgia, 
to  Eeed's  Bridge  on  the  Chickamauga  Eiver;  eighth,  the 
roads  from  the  crossing  of  Lookout  Creek  across  the  north- 
ern slope  of  Lookout  Mountain  and  thence  to  the  old  Surn- 
mertown  Eoad  and  to  the  valley  on  the  east  slope  of  the 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  667 

said  mountain,  and  thence  by  the  route  of  General  Joseph 

Hooker's  troops  to  Rossville,  Georgia,  and  each  and  all  of 

these  herein  described  roads  shall,  after  the  passage  of 

this  act,  remain  open  as  free  public  highways,  and  all 

rights  of  way  now  existing  through  the  grounds  of  the  said    Rights  of  way. 

park  and  its  approaches  shall  be  continued.     Sec.  1,  act  of 

August  19,  1890  (26  Stat.  L.,  333}. 

1784.  That  upon  the  ceding  of  jurisdiction  by  the  legis-    condemnation 

of    lands     and 

lature  of  the  State  of  Georgia,  and  the  report  of  the  Attor-  roads. 
ney-General  of  the  United  States  that  a  perfect  title  has 
been  secured  under  the  provisions  of  the  act  approved 
August  first,  eighteen  hundred  and  eighty-eight,  entitled 
"An  act  to  authorize  condemnation  of  land  for  sites  of 
public  buildings,  and  for  other  purposes,'7  the  lands  and 
roads  embraced  in  the  area  bounded  as  herein  described, 
together  with  the  roads  described  in  section  one  of  this 
act,  are  hereby  declared  to  be  a  national  park,  to  be  known 
as  the  Chickamauga  and  Chattanooga  National  Park;  that  Name, etc. 
is  to  say,  the  area  inclosed  by  a  line  beginning  on  the  Lafay- 
ette or  State  road,  in  Georgia,  at  a  point  where  the  bottom 
of  the  ravine  next  north  of  the  house  known  on  the  field 
of  Chickamauga  as  the  Cloud  House,  and  being  about  six 
hundred  yards  north  of  said  house,  due  east  to  the  Chicka- 
mauga River  and  due  west  to  the  intersection  of  the  Dry 
Valley  road  at  McFarland's  Gap ;  thence  along  the  west  side 
o;f  the  Dry  Valley  and  Crawfish  Springs  roads  to  the  south 
side  of  the  road  from  Crawfish  Springs  to  Lee  and  Gor- 
don's Mills  5  thence  along  the  south  side  of  the  last-named 
road  to  Lee  and  Gordon's  Mills ;  thence  along  the  channel 
of  the  Chickamauga  River  to  the  line  forming  the  north- 
ern boundary  of  the  park,  as  hereinbefore  described,  con- 
taining seven  thousand  six  hundred  acres,  more  or  less. 
Sec.  2,  ibid. 

1785.  That  the  said  Chickamauga  and  Chattanooga  Na-    Park  and  *P- 

proaches    to    be 

tional  Park,  and  the  approaches  thereto,  shall  be  under  under  control  of 
the  control  of  the  Secretary  of  War,  and  it  shall  be  his  duty,  war. 
immediately  after  the  passage  of  this  act,  to  notify  the  condemnation  in 
Attorney- General  of  the  purpose  of  the  United  States  to    sec.3,»wd. 
acquire  title  to  the  roads  and  lands  described  in  the  pre- 
vious sections  of  this  act  under  the  provisions  of  the  act  of 
August  first,  eighteen  hundred  and  eighty-eight;  and  the 
said  Secretary,  upon  receiving  notice  from  the  Attorney- 
General  of  the  United  States  that  perfect  titles  have  been 
secured  to  the  said  lands  and  roads,  shall  at  once  proceed 
to  establish  and  substantially  mark  the  boundaries  of  the 
said  park.    Sec.  3,  ibid. 


668  THE   MILITARY   LAWS    OF   THE   UNITED    STATES. 

Agreements      1786.  That  the  Secretary  of  War  is  hereby  authorized  to 

with     present 

land  owners  to  enter  into  agreements,  upon  such  nominal  terms  as  he  may 

remain,  etc. 

Sec.  4,  ibid.  prescribe,  with  such  present  owners  of  the  land  as  may 
desire  to  remain  upon  it,  to  occupy  and  cultivate  their 

Conditions  of  present  holdings,  upon  condition  that  they  will  preserve 
the  present  buildings  and  roads,  and  the  present  outlines 
of  field  and  forest,  and  that  they  will  only  cut  trees  or 
underbrush  under  such  regulations  as  the  Secretary  may 
prescribe,  and  that  they  will  assist  in  caring  for  and  pro- 
tecting all  tablets,  monuments,  or  such  other  artificial 
works  as  may  from  time  to  time  be  erected  by  proper 
authority.  Sec.  4,  ibid. 
stonero  conimi8"  1787,  That  the  affairs  of  the  Chickamauga  and  Chatta- 

sec.5,tMd.  nooga  National  Park  shall,  subject  to  the  supervision  and 
direction  of  the  Secretary  of  War,  be  in  charge  of  three 
commissioners,  each  of  whom  shall  have  actively  partici- 
pated in  the  battle  of  Chickamauga  or  one  of  the  battles 
about  Chattanooga,  two  to  be  appointed  from  civil  life  by 
the  Secretary  of  War,  and  a  third,  who  shall  be  detailed 
by  the  Secretary  of  War  from  among  those  officers  of  the 
Army  best  acquainted  with  the  details  of  the  battles  of 

Secretary  of  Chickamauga  and  Chattanooga,  who  shall  act  as  Secretary 
of  the  Commission.  The  said  commissioners  and  Secre- 
tary  shall  have  an  office  in  the  War  Department  building, 
and  while  on  actual  duty  shall  be  paid  such  compensation, 
out  of  the  appropriation  provided  in  this  act,  as  the  Secre- 
tary of  War  shall  deem  reasonable  and  just.  Sec.  5,  ibid. 

1788>  Tnat  ifc  slia11  be  tbe  duty  of  tne  commissioners 
sec. e,  ibid.  named  in  the  preceding  section,  under  the  direction  of  the 
Secretary  of  War,  to  superintend  the  opening  of  such  roads 
as  may  be  necessary  to  the  purposes  of  the  park,  and  the 
repair  of  the  roads  of  the  same,  and  to  ascertain  and  defi- 
nitely mark  the  lines  of  battle  of  all  troops  engaged  in  the 
battles  of  Chickamauga  and  Chattanooga,  so  far  as  the 
same  shall  fall  within  the  lines  of  the  park  as  defined  in 
the  previous  sections  of  this  act,  and,  for  the  purpose  of 
assisting  them  in  their  duties  and  in  ascertaining  these 
ne  Secretary  of  War  shall  have  authority  to  employ, 
at  sucn  compensation  as  he  may  deem  reasonable  and  just, 
to  be  paid  out  of  the  appropriation  made  by  this  act,  some 
person  recognized  as  well  informed  in  regard  to  the  details 
of  the  battles  of  Chickamauga  and  Chattanooga,  and  who 
shall  have  actively  participated  in  one  of  those  battles,  and 
it  shall  be  the  duty  of  the  Secretary  of  War  from  and  after 
the  passage  of  this  act,  through  the  commissioners,  and 


THE.  MILITARY    LAWS    OF   THE    UNITED    STATES.  669 

their  assistant  iii  historical  work,  and  under  the  act  ap- 

proved August  first,  eighteen  hundred  and  eighty-eight,    v.  25,  p.  357. 

regulating  the  condemnation  of  land  for  public  uses,  to 

proceed  with  the  preliminary  work  of  establishing  the  park 

and  its  approaches  as  the  same  are  defined  in  this  act,  and 

the  expenses  thus  incurred  shall  be  paid  out  of  the  appro- 

priation provided  by  this  act.1     Sec.  6,  ibid. 

1789.  That  it  shall  be  the  duty  of  the  commissioners, 
acting  under  the  direction  of  the  Secretary  of  War,  to 
ascertain  and  substantially  mark  the  locations  of  the  regu- 
lar troops,  both  infantry  and  artillery,  within  the  bounda- 
ries of  the  park,  and  to  erect  monuments   upon   those 
positions  as  Congress  may  provide  the  necessary  appro- 
priations; and  the  Secretary  of  War  in  the  same  way  may 
ascertain  and  mark  all  lines  of  battle  within  the  bounda-    Lines  of  battle. 
ries  of  the  park  and  erect  plain  and  substantial  historical 

tablets  at  such  points  in  the  vicinity  of  the  Park  and  its 
approaches  as  he  may  deem  fitting  and  necessary  to  clearly 
designate  positions  and  movements,  which,  although  with- 
out the  limits  of  the  Park,  were  directly  connected  with 
the  battles  of  Chickarnauga  and  Chattanooga.  Sec.  7,  ibid. 

1790.  That  it  shall  be  lawful  for  the  authorities  of  any    certain  states, 

J  etc.,  may  ascer- 

State  having  troops  engaged  either  at  Chattanooga  ortaiu  an<i  »»ark 

Hues    of    battle, 

Chickamauga,  and  for   the  officers   and  directors  of  the  etc. 


/-u  -    i  TLT  -i  •    ±'  ±- 

Chickamauga  Memorial  Association,  a  corporation  char- 

tered under  the  laws  of  Georgia,  to  enter  upon  the  lauds 

and  approaches  of  the  Chickamauga  and  Chattanooga 

National  Park  for  the  purpose  of  acertaining  and  marking 

the  lines  of  battle  of  troops  engaged  therein  :  Provided^ 

That  before  any  such  lines  are  permanently  designated 

the  position  of  the  lines  and  the  proposed  methods  of 

marking  them  by  monuments,  tablets,  or  otherwise  shall 

be  submitted  to  the  Secretary  of  War,  and   shall   first  w«Ctoeflw7a?' 

receive  the  written  approval  of  the  Secretary,  which  ap-  prove  Iin68>  etc> 

proval  shall  be  based  upon  formal  written  reports,  which 

must  be  made  to  him  in  each  case  by  the  commissioners  of 

the  park.     Sec.  6',  ibid. 

1791.  That  the  Secretary  of  War,  subject  to  the  ap-et£are  of  Park« 
proval  of  the  President  of  the  United  States,  shall  have    sec-  »,  ««*. 
the  power  to  make,  and  shall  make,  all  needed  regulations    Regulations, 
for  the  care  of  the  park  and  for  the  establishment  andetc< 
marking  of  the  lines  of  battle  and  other  historical  features 
of  the  park.     Sec.  9,  ibid. 

'All  vouchers  in  support  of  disbursements  under  tbe  act  of  August  19,  1890  (26 
Stat.  L.,  333),  providing  for  the  Chickamauga  and  Chattanooga  National  Park,  and 
acts  supplementary  thereto,  require  the  approval  of  the  Secretary  of  War.  (3 
Compt.  Dec.,  381.) 


670 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 


fo*  •ta-urhmetct  1^92.  That  if  any  person  shall  willfully  destroy,  mutilate, 
to  monument  s,  'deface,  injure,  or  remove  any  monument,  column,  statues, 
Sec.  10,  ibid,  memorial  structure,  or  work  of  art  that  shall  be  erected  or 
placed  upon  the  grounds  of  the  park  by  lawful  authority, 
or  shall  willfully  destroy  or  remove  any  fence,  railing,  in- 
closure,  or  other  work  for  the  protection  or  ornament  of 
said  park,  or  any  portion  thereof,  or  shall  willfully  destroy, 
cut,  hack,  bark,  break  down,  or  otherwise  injure  any  tree, 
bush,  or  shrubbery  that  may  be  growing  upon  said  park, 
or  shall  cut  down  or  fell  or  remove  any  timber,  battle  relic, 
tree  or  trees  growing  or  being  upon  such  park,  except  by 
permission  of  the  Secretary  of  War,  or  shall  willfully  re- 
move or  destroy  any  breast-works,  earth-works,  walls,  or 
other  defenses  or  shelter,  on  any  part  thereof,  constructed 
by  the  armies  formerly  engaged  in  the  battles  on  the  lands 
or  approaches  to  the  park,  any  person  so  offending  and 
found  guilty  thereof,  before  any  justice  of  the  peace  of  the 
county  in  which  the  offense  may  be  committed,  shall  for 
each  and  every  such  offense  forfeit  and  pay  a  fine,  in  the 
discretion  of  the  justice,  according  to  the  aggravation  of 
the  offense,  of  not  less  than  five  nor  more  than  fifty  dol- 
lars, one  half  to  the  use  of  the  park  and  the  other  half  to 
the  informer,  to  be  enforced  and  recovered,  before  such 
justice,  in  like  manner  as  debts  of  like  nature  are  now  by 
law  recoverable  in  the  several  counties  where  the  offense 
may  be  committed.  Sec.  10,  ibid. 

1793'  That  to  enable  the  Secretary  of  War  to  begin  to 
carry  ou^  *De  purposes  of  this  act,  including  the  condemna- 
tion  and  purchase  of  the  necessary  land,  marking  the 
boundaries  of  the  park,  opening  or  repairing  necessary 
roads,  maps  and  surveys,  and  the  pay  and  expenses  of  the 
commissioners  and  their  assistant,  the  sum  of  one  hundred 
and  twenty-  five  thousand  dollars,  or  such  portion  thereof 
as  may  be  necessary,  is  hereby  appropriated,  out  of  any 
moneys  in  the  Treasury  not  otherwise  appropriated,  and 
disbursements  under  this  act  shall  require  the  approval  of 
the  Secretary  of  War,  and  he  shall  make  annual  report 
of  the  same  to  Congress.  Sec.  11,  act  of  August  1,  1890  (26 
Stat.  L.,  333). 

MalU3e(i89iev.     1794>  Tnat  tlie  Secretary  of  War,  upon  the  recommenda- 
26,  P.  978.  tion  of  the  Chickamauga  Park  Commissioners,  may  confine 

the  limits  of  the  park  to  such  reduced  area,  within  the 
bounds  fixed  by  the  said  act,  as  may  be  sufficient  for  the 
purposes  of  the  said  act,  and  the  acquisition  of  title  for 
the  United  States  to  such  reduced  area  shall  be  held  to  be 
a  compliance  with  the  terms  of  said  act,  and  such  title 


8i°s'  °u  ibid 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      671 

shall  be  procured  by  the  Secretary  of  War  and  under  his 
direction  in  accordance  with  the  methods  prescribed  in 
sections  four,  five,  and  six  of  the  act  approved  February 
twenty-second,  eighteen  hundred  and  sixty  seven,  entitled 
"An  act  to  establish  and  protect  national  cemeteries," 
which  procurement  of  title  shall  be  held  to  be  a  compliance 
with  the  act  establishing  the  said  Park,  and  the  Secretary 
of  War  shall  proceed  with  the  establishment  of  the  park 
as  rapidly  as  jurisdiction  over  the  roads  of  the  park  and  its 
approaches  and  title  to  the  separate  parcels  of  land  which 
compose  it  may  be  obtained  from  the  United  States.  Act 
of  March  3,  1891  (26  Stat.  L.,  978). 

1795.  To  enable  the  Secretary  of  War  to  complete  the    Lease  of  lands, 
establishment  of  the  Ohickamauga  and  Chattanooga  Na- 
tional Military  Park  according  to  the  terms  of  existing    Aug.  5, 1392,  v. 
laws,  including  surveys,  maps,  models  in  relief,  the  pur- 
chase of  Orchard  Knob  and  Sherman's  Earthworks,  and 

for  observation  towers  and  the  purchase  of  sites  for  two  of 
them,  one  hundred  and  fifty  thousand  dollars:  Provided, 
That  the  Secretary  of  War  may  lease  the  lands  of  the  park 
at  his  discretion,  either  to  former  owners  or  other  persons, 
for  agricultural  purposes,  the  proceeds  to  be  applied  by  the 
Secretary  of  War  to  the  repairs  of  roads  and  the  care  of 
the  park ;  and  from  this  appropriation  the  Secretary  of  War 
is  authorized  to  pay  the  disbursing  officer  of  the  War  De- 
partment the  sum  of  five  hundred  dollars  for  disbursing 
this  and  former  appropriations  for  said  Park. 

That  the  Secretary  of  War  and  the  Secretary  of  the  Navy    Donation  of 

i  ,,        -       i    J.       -,    i«  ±-,        r*  •      '  condemned    can- 

are  hereby  authorized  to  deliver  to  the  Commissioners  of  non,  etc. 

the  Chickarnauga  and  Chattanooga  National  Military  Park,  27,p?598.' 
at  the  park,  such  number  of  condemned  cannon  and  can- 
non balls  as  their  judgment  may  approve,  for  the  purpose 
of  their  work  of  indication  and  marking  location  on  the 
battlefields  of  Chickainauga,  Missionary  Eidge  and  Look- 
out Mountain.  Act  of  August  5,  1892  (27  Stat.  L.,  376}. 

1796.  To  enable  the  Secretary  of  War  to  complete  the    Donations    of 
establishment  of  the  Chickarnauga  and  Chattanooga  Na- 
tional Military  Park,  according  to  the  terms  of  existing    Mar.  3, 1893,  v. 
laws,  including  the  construction  of  roads,  surveys,  maps, 

iron  gun  carriages,  administration  building,  the  purchase  of 
land  within  the  legal  area  of  the  park  and  the  north  point 
of  Lookout  Mountain,  and  for  widening  roads,  for  bronze 
historical  tablets,  repairs  to  bridges,  one  observation  tower 
on  Orchard  Knob ;  *  *  *  in  all,  one  hundred  thousand 
dollars.  And  the  Secretary  of  War  is  hereby  authorized 
to  accept  on  behalf  of  the  United  States  donations  of  land 
for  road  purposes.  Act  of  March  3, 1893  (27  Stat.  L.,  376). 


672  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

^Continuation  of     1797.  TO    *     *     *    complete  the  establishment  of  the 
^  Alibis,  1894, v.  park,     *     *     *     including  road  construction,     *     *     * 

foundations  for   State  monuments,  the  purchase  of  the 

Purchase  of  north  end  of  Missionary  Itidge,  and   monument  sites  in 

the  vicinity  of  Glass's  Mill,     *     *     *     in  all,  seventy-five 

thousand  dollars.     Act  of  A  ugust  18, 1894  (28  Stat.  L.,  403). 

The  same.  1798.  To     *     *     *     complete  the  establishment  of  the 

28,  p.  945.'  *     *     *     park,     *     *     *     including  road  work,  memorial 

gateway  and  designs  therefor,  *  *  *  laud  the  purchase 
of  which  has  heretofore  been  authorized  by  law,  sites  for 
monuments  in  Lookout  Valley,  not  to  exceed  three  hundred 
dollars  in  all;  in  all,  seventy-five  thousand  dollars.  Act  of 
March  2*  1895  (28  Stat.  L.,  945).  That  the  said  Board  of 
Commissioners  heretofore  appointed  pursuant  to  the  stat- 
ute creating  said  park,  is  hereby  empowered  to  authorize 
the  boards  or  representatives  of  the  several  States  building 
monuments  upon  said  battlefield,  to  take  and  use,  under 
such  rules  and  regulations,  and  upon  such  terms  as  said 
use  of  material  National  Commission  may  direct,  such  stone  and  other 

for  State  monu-  .    ,     .       ,      , .  ,    *       , 

ments   author- material,  including  sand  and  gravel,  as  may  be  necessary 

J.-'K.  s,  Oct.  2,  to  construct  the  foundation  for  any  such  monuments,  and 

1893,  v. 28, P.  12.    wuick  mav  j^  fou,,d  within  the  territory  of  said  National 

Park,  and  the  roads  and  highways  leading  thereto.     Joint 
resolution  No.  8,  October  2,  1893  (28  Stat.  L.,  12). 
Restriction  on      1799.  That  no  monuments  or  memorials  shall  be  erected 

erection  ot  mon- 
uments, upon  any  lands  of  the  park,  or  remain  upon  any  lauds 

29,  p.  21. '          which  may  be  purchased  for  the  park,  except  upon  ground 

actually  occupied  in  the  course  of  the  battle  by  troops  of 
the  State  which  the  proposed  monuments  are  intended 
to  commemorate,  except  upon  those  sections  of  the  park 
set  apart  for  memorials  to  troops  which  were  engaged  in 
the  campaigns,  but  operated  outside  of  the  legal  limits  of 
the  park;  and  the  regulations  of  the  commissioners  of  the 
park,  as  approved  by  the  Secretary  of  War,  promulgated 
December  fourteenth,  eighteen  hundred  and  ninety-five, 
are  hereby  affirmed.  Act  of  February  26, 1896  (29  Stat.  L., 
21). 

THE  GETTYSBURG  NATIONAL  PARK  AT  GETTYSBURG,  PA. 

tiSfai?£krgNa'     1800'  That  the  Secretary  of  War  is  hereby  authorized  to 
Acceptance  of  receive  from  the  Gettysburg  Battlefield  Memorial  Associa- 

lauu  irom  Battle-  * 

A88«?cia?ioirorial^on'  a  corPoratiou  chartered  by  the  State  of  Pennsylvania, 
Feb.  11, 1895,  v.  a  deed  of  conveyance  to  the  United  States  of  all  the  lands 

tic  p.  651. 

belonging  to  said  association,  embracing  about  eight  hun- 
dred acres,  more  or  less,  and  being  a  considerable  part 
of  the  battlefield  of  Gettysburg,  together  with  all  rights 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  673 

of  way  over  avenues  through  said  lands  acquired  by  said 
association,  and  all  improvements  made  by  it  in  and  upon 
the  same.  Upon  the  due  execution  and  delivery  to  the 
Secretary  of  War  of  such  deed  of  conveyance,  the  Secre- 
tary of  War  is  authorized  to  pay  to  the  said  Battlefield 
Memorial  Association  the  sum  of  two  thousand  dollars,  or 
so  much  thereof  as  may  be  necessary  to  discharge  the 
debts  of  said  association,  the  amount  of  such  debts  to  be 
verified  by  the  officers  thereof,  and  the  sum  of  two  thousand 
dollars  is  hereby  appropriated  out  of  any  money  in  the 
Treasury  not  otherwise  appropriated  to  meet  and  defray 
such  charges.  Act  of  February  11,  1895  (28  Stat.  £.,  651). 

1801.  That  as  soon  as  the  lands  aforesaid  shall  be  con-    Designation, 
veyed  to  the  United  States  the  Secretary  of  War  shall 

take  possession  of  the  same,  and  such  other  lauds  on  the 
battlefield  as  the  United  States  have  acquired,  or  shall 
hereafter  acquire,  by  purchase  or  condemnation  proceed- 
ings; and  the  lands  aforesaid,  shall  be  designated  and 
known  as  the  a  Gettysburg  National  Park."  Sec.  2,  ibid. 

1802.  That  the  Gettysburg  national  park  shall,  subject  Commissioners, 
to  the  supervision  and  direction  of  the  Secretary  of  War, 

be  in  charge  of  the  commissioners  heretofore  appointed  by 
the  Secretary  of  War  for  the  location  and  acquisition  of 
lands  at  Gettysburg,  and  their  successors ;  the  said  com- 
missioners shall  have  their  office  at  Gettysburg,  and  while 
on  duty  shall  be  paid  such  compensation  out  of  the  appro-  compensation. 
priation  provided  in  this  act  as  the  Secretary  of  War  shall 
deem  reasonable  and  just.  And  it  shall  be  the  duty  of  the  Duty- 
said  commissioners,  under  the  direction  of  the  Secretary  of 
War,  to  superintend  the  opening  of  such  additional  roads 
as  may  be  necessary  for  the  purposes  of  the  park  and  for 
the  improvement  of  the  avenues  heretofore  laid  out  therein, 
and  to  properly  mark  the  boundaries  of  the  said  park,  and 
to  ascertain  and  definitely  mark  the  lines  of  battle  of  all 
troops  engaged  in  the  battle  of  Gettysburg,  so  far  as  the 
same  shall  fall  within  the  limits  of  the  park.1  Sec.  3,  ibid. 

1803.  That  the  Secretary  of  War  is  hereby  authorized    Acquiring  ad- 

ditionalland.etc. 

and  directed  to  acquire,  at  such  tunes  and  in  such  manner    sec.4,<&id. 
as  he  may  deem  best  calculated  to  serve  the  public  interest, 
such  lands  in  the  vicinity  of  Gettysburg,  Pennsylvania, 
not  exceeding  in  area  the  parcels  shown  on  the  map  pre- 


1  Where  certain  land,  part  of  the  battlefield  of  Gettysburg,  was  in  danger  of  being 
so  cut  up  and  altered  by  the  construction  of  an  electric  railroad  as  to  cause  the  oblit- 
eration of  important  tactical  positions  occupied  by  the  different  commands  engaged 
in  the  battle,  a dvised  that  tho  Attorney-General  bo  requested  to  have  initiated  the 
proper  proceedings  for  tho  condemnation  of  the  land  so  that  the  United  States  may 
acquire  the  fee,  and  for  an  injunction  restraining  the  railroad  company  from  con- 
structing or  operating  its  road  upon  the  laud  pending  the  condemnation  proceed- 
ings. (Dig.  Opin.  J.  A.  Gen,,  466,  par.  3.) 

1911' 43 


674  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

pared  by  Major-General  Daniel  E,  Sickles,  United  States 
Army,  and  now  on  file  in  the  office  of  the  Secretary  of  War, 
which  were  occupied  by  the  infantry,  cavalry,  and  artillery 
on  the  first,  .second  and  third  days  of  July,  eighteen  hun- 
dred and  sixty-three,  and  such  other  adjacent  lands  as  he 
may  deem  necessary  to  preserve  the  important  topograph- 
ical  features  of  the  battlefield :  Provided,  That  nothing  con- 
tained in  this  Act  shall  be  deemed  and  held  to  prejudice 
the  rights  acquired  by  any  State  or  by  any  military  organ- 
ization to  the  ground  on  which  its  monuments  or  markers 
are  placed,  nor  the  right  of  way  to  the  same.  Sec.  4, 
ibid. 

1804.  That  for  the  purpose  of  acquiring  the  lands  desig- 
nated  and  described  in  the  foregoing  section  not  already 
acquired  and  owned  by  the  United  States,  and  such  other 
adjacent  laud  as  may  be  deemed  necessary  by  the  Secre- 
tary of  War  for  the  preservation  and  marking  of  the  lines 
of  battle  of  the  Union  and  Confederate  armies  at  Gettys- 
burg, the  Secretary  of  War  is  authorized  to  employ  the 
services  of  the  commissioners  heretofore  appointed  by  him 
for  the  location,  who  shall  proceed,  in  conformity  with  his 
instructions  and  subject  in  all  things  to  his  approval,  to 
acquire  such  lauds  by  purchase,  or  by  condemnation  pro- 
ceedings, to  be  taken  by  the  Attorney -General  in  behalf  of 
the  United  States,  in  any  case  in  which  it  shall  be  ascer- 
tained that  the  same  can  not  be  purchased  at  prices  deemed 
reasonable  and  just  by  the  said  commissioners  and  approved 
PrScee(Iu™gstl()I1by  the  Secretary  of  War.  And  such  condemnation  pro- 
v. 25, p. 357.  Ceediugs  may  be  taken  pursuant  to  the  Act  of  Congress 
approved  August  first,  eighteen  hundred  and  eighty- eight, 
regulating  the  condemnation  of  land  for  public  uses,  or  the 
Joint  Resolution  authorizing  the  purchase  or  condemnation 
of  land  in  the  vicinity  of  Gettysburg,  Pennsylvania,  ap- 
proved June  fifth,  eighteen  hundred  and  ninety-four.  8ec. 
5,  ibid. 

etReg«lation8,        18Q5     That  it  glialj  be   the  duty  ()f  the   georetary  of  War 

sec.  G,  iMd.  to  establish  and  enforce  proper  regulations  for  the  custody, 
preservation,  and  care  of  the  monuments  now  erected  or 
which  may  be  hereafter  erected"  within  the  limits  of  the 
said  national  military  park;  and  such  rules  shall  provide 
for  convenient  access  by  visitors  to  all  such  monuments 
within  the  park,  and  the  ground  included  therein,  on  such 
days  and  within  such  hours  as  may  be  designated  and 
authorized  by  the  Secretary  of  War.  Sec.  6',  ibid. 

8tPreoyiiig°rcl,T.  1806'  Tuat  if  any  Person  slia]1  destroy,  mutilate,  deface, 
injure,  or  remove,  except  by  permission  of  the  Secretary  of 
War,  any  column,  statue,  memorial  structure,  or  work  of 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  675 

art  that  shall  be  erected  or  placed  upon  the  grounds  of  the 
park  by  lawful  authority,  or  shall  destroy  or  remove  any 
fence,  railing,  inclosure,  or  other  work  for  the  protection  or 
ornament  of  said  park  or  any  portion  thereof,  or  shall  de- 
stroy, cut,  hack,  bark,  break  down,  or  otherwise  injure  any 
tree,  bush,  or  shrubbery  that  may  be  growing  upon  said 
park,  or  shall  cut  down  or  fell  or  remove  any  timber,  battle 
relic,  tree  or  trees,  growing  or  being  upon  said  park,  or 
hunt  within  the  limits  of  the  park,  or  shall  remove  or 
destroy  any  breastworks,  earthworks,  walls,  or  other  de- 
fenses or  shelter  or  any  part  thereof  constructed  by  the 
armies  formerly  engaged  in  the  battles  on  the  land  or 
approaches  to  the  park,  or  shall  violate  any  regulation 
made  and  published  by  the  Secretary  of  War  for  the  gov- 
ernment of  visitors  within  the  limits  of  said  park,  any 
person  so  offending  and  found  guilty  thereof,  before  any 
justice  of  the  peace  of  the  county  in  which  the  offense  may 
be  committed,  shall,  for  each  and  every  such  offense,  forfeit 
and  pay  a  tine,  in  the  discretion  of  the  justice,  according 
to  the  aggravation  of  the  offense,  of  not  less  than  five  nor 
more  than  iive  hundred  dollars,  one-half  for  the  use  of  the 
park  and  the  other  half  to  the  informer,  to  be  enforced  and 
recovered  before  such  justice  in  like  manner  as  debts  of 
like  nature  are  now  by  law  recoverable  in  the  county  where 
the  offense  may  be  committed.  Sec.  7,  ibid. 

1807,  That  the  Secretary  of  War  is  hereby  authorized    Bronze  tablet 
and  directed  to  cause  to  be  made  a  suitable  bronze  tablet,  coin's  "address, 
containing  on  it  the  address  delivered  by  Abraham  Lin-ets'ec.8,i&<d. 
coin,  President  of  the  United  States,  at  Gettysburg  on  the 
nineteenth  day  of  November,  eighteen  hundred  and  sixty- 
three,  on  the  occasion  of  the  dedication  of  the  national 
cemetery  at  that  place,  and  such   tablet,  having  on  it 
besides  the  address  a  medallion  likeness  of  President  Lin-    Medallion, 
coin,  shall  be  erected  on  the  most  suitable  site  within  the 
limits  of  said  park,  which  said  address  was  in  the  following 
words,  to  wit: 

"Four  score  and  seven  years  ago  our  fathers  brought    inscription, 
forth  on  this  continent  a  new  nation,  conceived  in  liberty 
and  dedicated  to  the  proposition  that  all  men  are  created 
equal. 

"Now  we  are  engaged  in  a  great  civil  war,  testing 
whether  that  nation,  or  any  nation  so  conceived  and  so 
dedicated,  can  long  endure.  We  are  met  on  a  great  battle- 
field of  that  war.  We  have  come  to  dedicate  a  portion  of 
that  field  as  a  final  resting  place  for  those  who  here  gave 
their  lives  that  that  nation  might  live.  It  is  altogether  fit- 
ting and  proper  that  we  should  do  this. 


676  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

"  But,  in  a  larger  sense,  we  can  not  dedicate,  we  can  not 
consecrate,  we  can  not  hallow  this  ground.  The  brave 
men,  living  and  dead,  who  struggled  here,  have  consecrated 
it  far  above  our  poor  power  to  add  or  detract.  The  world 
will  little  note,  nor  long  remember,  what  we  say  here; 
but  it  can  never  forget  what  they  did  here.  It  is  for  us, 
the  living,  rather  to  be  dedicated  here  to  the  unfinished 
work  which  they  who  fought  here  have  thus  far  so  nobly 
advanced.  It  is  rather  for  us  to  be  here  dedicated  to  the 
great  task  remaining  before  us;  that  from  these  honored 
dead  we  take  increased  devotion  to  that  cause  for  which 
they  gave  the  last  full  measure  of  devotion;  that  we  here 
highly  resolve  that  these  dead  shall  not  have  died  in  vain; 
that  this  nation,  under  God,  shall  have  a  new  birth  of  free- 
dom, and  that  government  of  the  people,  by  the  people,  for 
the  people,  shall  not  perish  from  the  earth." 

And  the  sum  of  five  thousand  dollars,  or  so  much  thereof 
as  may  be  necessary,  is  hereby  appropriated,  out  of  any 
money  in  the  Treasury  not  otherwise  appropriated,  to  pay 
the  cost  of  said  tablet  and  medal  lion  and  pedestal.  Sec. 
8,  ibid. 
Appropriation  1808.  That,  to  enable  the  Secretary  of  War  to  carry  out 

for  expenses,  etc.  .        ...       *      -i  •  ,, 

Sec.9,tWd.  the  purposes  of  this  Act,  including  the  purchase  or  con- 
demnation of  the  land  described  in  sections  four  and  five 
of  this  Act,  opening,  improving,  and  repairing  necessary 
roads  and  avenues,  providing  surveys  and  maps,  *  *  * 
seventy-five  thousand  dollars,  or  so  much  thereof  as  may 
be  necessary,  is  hereby  appropriated,  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated;  and  all  dis- 
bursements made  under  this  Act  shall  require  the  approval 
of  the  Secretary  of  War,  who  shall  make  annual  report  of 
the  same  to  Congress.1  Sec.  9,  ibid. 

Monuments,  1809.  For  the  erection  of  monuments  or  memorial  tablets 
etMar.e3/l887,rf'.  for  the  proper  marking  of  the  position  of  each  of  the  com- 
mands of  the  Regular  Army  engaged  at  Gettysburg,  fifteen 
thousand  dollars,  to  be  expended  under  the  direction  of 
the  Secretary  of  War.  Act  of  March  3,  1887  (24  Mat.  L., 
535). 

The  same.  1810.  That  the  appropriation  of  fifteen  thousand  dol- 

25^538. 1888'  v'  lars,  made  by  the  act  approved  March  third,  eighteen 
hundred  and  eighty-seven,  for  the  erection  of  monu- 
ments or  memorial  tablets  for  the  proper  marking  of  the 
position  of  each  of  the  commands  of  the  regular  Army 


1  Joint  Resolution  No.  30,  June  5,  1894  (28  Stat.  L.,  584),  authorizes  the  acquisition 
of  lands  at  Gettysburg  by  condemnation,  under  the  act  of  August  1,  1888  (25  Stat. 
L.,  357.) 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  677 

engaged  at  Gettysburg,  be,  and  the  same  is  hereby,  made 
available  for  the  purchase  of  land  upon  which  to  erect 
the  monuments  and  tablets.  Act  of  October  2,  1888  (25 
Stat.  L.,  538). 

1811.  For  the  purpose  of  preserving  the  lines  of  battle    Monuments 

,  .         and     tablets    at 

at   Gettysburg,  Pennsylvania,  and  for  properly  mar  king  Gettysburg,  Pa. 

with  tablets  the  positions  occupied  by  the  various  com 

mauds  of  the  armies  of  the  Potomac  and  of  Northern  Vir 

ginia  on  that  field,  and  for  opening  and  improving  avenues    ^™nje1sg9e3tc^r 

along  the  positions  occupied  by  troops  upon  those  lines,  27^.599. 

and  lor  fencing  the  same,  and  for  determining  the  leading 

tactical  positions  of  batteries,  regiments,  brigades,  divi- 

sions, corps,  and  other  organizations  with  reference  to  the 

study  and  correct  understanding  of  the  battle,  and  to  mark 

the  same  with  suitable  tablets,  each  bearing  a  brief  histor 

ical  legend,  compiled  without  praise  and  without  censure, 

the  sum  of  twenty-five  thousand  dollars,  to  be  expended 

under  the  direction  of  the  Secretary  of  War.1    Act  of  March 

3,  1893  (27  Stat.  L.,  599). 

1812.  That  the  Secretary  of  War  is  hereby  authorized    specimens  of 
and  directed  to  deliver  to  the  Gettysburg  Battlefield  Memo-  in  battle'  to  bo 


rial  Association,  at  Gettysburg,  Pennsylvania,  specimens  y?,  1392,  \. 
of  the  arms,  equipments,  projectiles,  uniforms,  and  other  27'p'2 
material  of  war  used  by  the  armies  in  that  battle  (so  far  as 
may  be  practicable),  for  the  purpose  of  exhibiting  and  pre- 
serving them  for  historical  purposes  in  the  museum  at  the 
house  used  by  Major-General  Meade  for  headquarters,  now 
owned  by  the  said  association,  or  at  such  other  place  as  the 
directors  of  the  association  may  deem  proper.  And  that 
the  transportation  to  Gettysburg  be  furnished  by  the  Quar- 
termaster's Department  of  the  United  States  from  the  ap- 
propriation for  the  transportation  of  army  supplies.  Act 
of  July  27,  1892  (27  Stat.  L.,  276). 

1813.  That  the  Secretary  of  War  is  hereby  authorized  iu    Roads,  etc. 
his  discretion  to  improve  and  maintain  the  public  roads  29,  p.n384.'18  'v> 
within  the  limits  of  the  national  park  at  Gettysburg,  Penn- 
sylvania, over  which  jurisdiction  has  been  or  may  hereafter 
be  ceded  to  the  United  States:   Provided,  That  nothing- 
contained  in  this  Act  shall  be  deemed  and  held  to  prejudice 
the  rights  acquired  by  any  State  or  by  any  military  organ- 
ization to  the  ground  on  which  its  monuments  or  markers 
are  placed  nor  the  right  of  way  to  the  same.    Act  of  June 
10,  1896  (29  Stat.  L.,  384). 


'This  statute  was  held  to  bo  constitutional  and  within  the  power  of  Congress  by 
the  decision  of  the  Supreme  Court  of  the  United  States  in  the  case  of  the  United 
States  v.  The  Gettysburg  Electric  Railway  Company  (160  U.  S.,  668). 


678  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

surveys iet?ing  1814.  For  continuing  the  work  of  surveying,  locating,  and 
Aug.  is,  i894,v.  preserving  the  lines  of  battle  at  Gettysburg,  Pennsylvania, 
and  for  purchasing,  opening,  constructing,  and  improving 
avenues  along  the  portions  occupied  by  the  various  com- 
mands of  the  armies  of  the  Potomac  and  Northern  Virginia 
on  that  field,  and  for  fencing  the  same;  and  for  the  pur- 
chase, at  private  sale  or  by  condemnation,  of  such  parcels 
of  land  as  the  Secretary  of  War  may  deem  necessary  for 
the  sites  of  tablets,  and  for  the  construction  of  the  said 
avenues;  for  determining  the  leading  tactical  positions  and 
properly  marking  the  same  with  tablets  of  batteries,  regi- 
ments, brigades,  divisions,  corps,  and  other  organizations 
with  reference  to  the  study  and  correct  understanding  of 
the  battle,  each  tablet  bearing  a  brief  historical  legend, 
compiled  without  praise  and  without  censure;  fifty  thou- 
sand dollars,  to  be  expended  under  the  direction  of  the 
Secretary  of  War. '  Act  of  August  18, 1894  (28  Stat.  L.,  405}. 


shiioh  National  1815.  That  iu .  order  that  the  armies  of  the  southwest 
tabiished.**  s  which  served  in  the  civil  war,  like  their  comrades  of  the 
28Dp0(59277' 1894' v'  eastern  armies  at  Gettysburg  and  those  of  the  central  west 
at  Chickamauga,  may  have  the  history  of  one  of  their 
memorable  battles  preserved  on  the  ground  where  they 
fought,  the  battlefield  of  Shiioh,  in  the  State  of  Tennessee, 
is  hereby  declared  to  be  a  national  military  park,  whenever 
title  to  the  same  shall  have  been  acquired  by  the  United 
States  and  the  usual  jurisdiction  over  the  lands  and  roads 
of  the  same  shall  have  been  granted  to  the  United  States 
by  the  State  of  Tennessee;  that  is  to  say,  the  area  inclosed 
by  the  following  lines,  or  so  much  thereof  as  the  commis- 
sioners of  the  park  may  deem  necessary,  to  wit :  Beginning 
at  low-water  mark  on  the  north  bank  of  Snake  Creek 
where  it  empties  into  the  Tennessee  River;  thence  west- 
wardly  in  a  straight  line  to  the  point  where  the  river  road 


1  The  appropriations  for  the  Gettysburg  National  Park,  made  in  the  acts  of  August 
18,  1894,  and  February  11,  1895,  to  the  extent  that  they  provide  for  objects  common 
to  both,  are  cumulative,  while  eacli  is  available  for  certain  objects  not  provided  for 
in  the  other.  (2  Compt.  Dec.,  59.) 

The  act  of  June  9,  1880  (21  Stat.  L.,  170),  contained  the  following  provision:  "That 
the  sum  of  tifty  thousand  dollars,  or  so  much  thereof  as  may  be  necessary,  is  hereby 
appropriated,  out  of  any  money  in  the  Treasury  not  otherwise  appropriated,  to  com- 
plete the  survey  of  the  Gettysburg  battle-field ;  also,  to  provide  for  the  compilation 
of  all  available  data  used  in  locating  troops  on  the  engineer  maps  of  that  battle;  also, 
to  provide  diagrams  showing  the  changing  movements  and  positions  during  the  en- 
gagement; the  whole  to  be  done  by  or  under  the  direction  of  Mr.  John  B.  Bachelder, 
author  of  the  position  plates  of  the  Government  maps  of  that  battle,  under  the  direc- 
tion of  the  Secretary  of  War:  Provided,  That  no  part  of  said  sum  shall  be  disbursed 
by  the  Secretary  of  War  except  for  work  actually  performed  or  for  materials  fur- 
nished for  the  objects  heretofore  named;  and  that" all  the  maps,  data,  and  materials 
prepared  for,  or  used  for,  the  work  contemplated  by  this  act  shall  be  the  property  of 
the  Government,  to  be  deposited  in  the  Department  of  War:  And  provided  further, 
That  the  sum  hereby  appropriated  shall  be  in  full  satisfaction  for  all  work  done  and 
all  material  collected  by  the  said  John  Ji.  Bachelder." 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  679 

to  Crumps  Landing,  Tennessee,  crosses  Snake  Creek ;  thence 
along  the  channel  of  Snake  Creek  to  Owl  Creek;  thence 
along  the  channel  of  Owl  Creek  to  the  crossing  of  the  road 
to  Purdy,  Tennessee;  thence  southwardly  in  a  straight  line 
to  the  intersection  of  an  east  and  west  line  drawn  from 
the  point  where  the  road  to  Hamburg,  Tennessee,  crosses 
Lick  Creek,  near  the  mouth  of  the  latter;  thence  eastward 
along  the  said  east  and  west  line  to  the  point  where  the 
Hamburg  Eoad  crosses  Lick  Creek;  thence  along  the  chan- 
nel of  Lick  Creek  to  the  Tennessee  River ;  thence  along  low- 
water  mark  of  the  Tennessee  River  to  the  point  of  begin- 
ning, containing  three  thousand  acres,  more  or  less,  and  the 
area  thus  inclosed  shall  be  known  as  the  Shiloh  National 
Military  Park :  Provided,  That  the  boundaries  of  the  land 
authorized  to  be  acquired  may  be  changed  by  the  said  com- 
missioners. Sec.  1,  act  of  December  27, 1894  (28  Stat.  L.,  597). 

1816.  That  the  establishment  of  the  Shiloh  National  Mili-  w«a5?V5i£i!f 
tary  Park  shall  be  carried  forward  under  the  control  and  laiSoc?viMd. 
direction  of  the  Secretary  of  War,  who,  upon  the  passage 

of  this  Act,  shall  proceed  to  acquire  title  to  the  same  either 
under  the  Act  approved  August  first,  eighteen  hundred 
and  eighty-eight,  entitled  "An  Act  to  authorize  the  condem- 
nation of  land  for  sites  of  public  buildings,  and  for  other 
purposes,"  or  under  the  Act  approved  February  twenty- 
seventh,  eighteen  hundred  and  sixty-seven,  entitled  "An 
Act  to  establish  and  protect  national  cemeteries/7  as  he 
may  select,  and  as  title  is  procured  to  any  portion  of  the 
lands  and  roads  within  the  legal  boundaries  of  the  park  he 
may  proceed  with  the  establishment  of  the  park  upon  such 
portions  as  may  thus  be  acquired.  Sec.  2,  ibid. 

1817.  That  the  Secretary  of  War  is  hereby  authorized  to  t]^refzseX'etc"au' 
enter  into  agreements  whereby  he  may  lease,  upon  such    Sec-3«i&ld- 
terms  as  he  may  prescribe,  with  such  present  owners  or 

tenants  of  the  lands  as  may  desire  to  remain  upon  it,  to 
occupy  and  cultivate  their  present  holdings  upon  condition 
that  they  will  preserve  the  present  buildings  and  roads  and 
the  present  outlines  of  field  and  forest,  and  that  they  only 
will  cut  trees  or  underbrush  under  such  regulations  as  the 
Secretary  may  prescribe,  and  that  they  will  assist  in  caring 
for  and  protecting  all  tablets,  monuments,  or  such  other 
artificial  works  as  may  from  time  to  time  be  erected  by 
proper  authority.  Sec.  3,  ibid. 

1818.  That  the  affairs  of  the  Shiloh  National  Military 
Park  shall,  subject  to  the  supervision  and  direction  of  the 
Secretary  of  War,  be  in  charge  of  three  commissioners,  to 
be  appointed  by  the  Secretary  of  War,  each  of  whom  shall 


680      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

have  served  at  the  time  of  the  battle  in  one  of  the  armies 
engaged  therein,  one  of  whom  shall  have  served  in  the 
Army  of  the  Tennessee,  commanded  by  General  U.  S. 
Grant,  who  shall  be  chairman  of  the  commission  ;  one  in 
the  Army  of  the  Ohio,  commanded  by  General  D.  0.  Buell; 
and  one  in  the  Army  of  the  Mississippi,  commanded  by 
General  A.  S.  Johnston.  The  said  commissioners  shall 
have  an  office  in  the  War  Department  building,  and  while 
^Compensation,  on  actual  duty  shall  be  paid  such  compensation  out  of  the 
appropriations  provided  by  this  Act  as  the  Secretary  of 
War  shall  deem  reasonable  and  just;  and  for  the  purpose 
of  assisting  them  in  their  duties  and  in  ascertaining  the 
lines  of  battle  of  all  troops  engaged  and  the  history  of 
their  movements  in  the  battle,  the  Secretary  of  War  shall 
have  authority  to  employ,  at  such  compensation  as  he  may 
deem  reasonable,  to  be  paid  out  of  the  appropriations  made 
by  this  Act,  some  person  recognized  as  well  informed  con- 
cerning the  history  of  the  several  armies  engaged  at  Shiloh, 
and  who  shall  also  act  as  secretary  of  the  commission.  Sec. 
4,  ibid. 


Duty  of  com-     igio.  That  it  shall  be  the  duty  of  the  commission  named 

mission. 

sec.  5,  ibid.  in  the  preceding  section,  under  the  direction  of  the  Sec- 
retary of  War.  to  open  or  repair  such  roads  as  may  be  nec- 
essary to  the  purposes  of  the  park,  and  to  ascertain  and 
mark  with  historical  tablets  or  otherwise,  as  the  Secretary 
of  War  may  determine,  all  lines  of  battle  of  the  troops 
engaged  in  the  battle  of  Shiloh  and  other  historical  points 
of  interest  pertaining  to  the  battle  within  the  park  or  its 
vicinity,  and  the  said  commission  in  establishing  this  mili- 
tary park  shall  also  have  authority,  under  the  direction  of 
the  Secretary  of  War,  to  employ  such  labor  and  services 
and  to  obtain  such  supplies  and  material  as  may  be  nec- 
essary to  the  establishment  of  the  said  park  under  such 
regulations  as  he  may  consider  best  for  the  interest  of  the 
Government,  and  the  Secretary  of  War  shall  make  and 
enforce  all  needed  regulations  for  the  care  of  the  park. 
Sec.  5,  ibid. 

1820.  That  it  shall  be  lawful  for  any  State  that  had  troops 
engaged  in  the  battle  of  Shiloh  to  enter  upon  the  lauds  of 
the  Shiloh  National  Military  Park  for  the  purpose  of  ascer- 
taining and  marking  the  lines  of  battle  of  its  troops 
engaged  therein:  Provided,  That  before  any  such  lines  are 
permanently  designated  the  position  of  the  lines  and  the 
proposed  methods  of  marking  them  by  monuments,  tablets, 
or  otherwise  shall  be  submitted  to  and  approved  by  the  Sec- 
retary of  War,  and  all  such  lines,  designs  and  inscriptions 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  681 

for  the  same  shall  first  receive  the  written  approval  of  the 
Secretary,  which  approval  shall  be  based  upon  formal 
written  reports,  which  must  be  made  to  him  in  each  case 
by  the  commissioners  of  the  park  :  Provided.  That  no  D  i  scrim  ina- 

,7         .      .        ,.  ,      „    .  .  ,.       lions  forbidden. 

discrimination  shall  be  made  against  any  State  as  to  the 
manner  of  designating  lines,  but  any  grant  made  to  any 
State  by  the  Secretary  of  War  may  be  used  by  any  other 
State.  Sec.  6,  ibid. 

1821.  That  if  any  person  shall,  except  by  permission 
the  Secretary  of  War,  destroy,  mutilate,  deface,  injure,  or 
remove  any  monument,  column,  statues,  memorial  struc- 
tures, or  work  of  art  that  shall  be  erected  or  placed  upon 
the  grounds  of  the  park   by  lawful   authority,  or   shall 
destroy  or  remove  any  fence,  railing,  inclosure,  or  other 
work  for  the  protection  or  ornament  of  said  park,  or  any 
portion  thereof,  or  shall  destroy,  cut,  hack,  bark,  break 
down,  or  otherwise  injure  any  tree,  bush,  or  shrubbery  that 
may  be  growing  upon  said  park,  or  shall  cut  down  or  fell  or 
remove  any  timber,  battle  relic,  tree  or  trees  growing  or 
being  upon  said  park,  or  hunt  within  the  limits  of  the  park, 
or  shall  remove  or  destroy  any  breastworks,  earthworks, 
walls,  or  other  defenses  or  shelter  on  any  part  thereof  con- 
structed by  the  armies  formerly  engaged  in  the  battles  on 
the  hinds  or  approaches  to  the  park,  any  person  so  oft'end- 
ing  and  found  guilty  thereof,  before  any  justice  of  the 
peace  of  the  county  in  which  the  offense  may  be  committed 
or  any  court  of  competent  jurisdiction  shall  for  each  and 
every  such  offense  forfeit  and  pay  a  fine,  in  the  discretion 
of  the  justice,  according  to  the  aggravation  of  the  offense, 
of  not  less  than  five  nor  more  than  fifty  dollars,  one-half 
for  the  use  of  the  park  and  the  other  half  to  the  informer, 
to  be  enforced  and  recovered  before  such  justice  in  like 
manner  as  debts  of  like  nature  are  now  by  law  recoverable 
in  the  several  counties  where  the  offense  may  be  committed. 
Sec.  7,  ibid. 

1822.  That  to  enable  the  Secretary  of  War  to  begin  to 

carry  out  the  purpose  of  this  Act,  including  the  condernna-  sec.  s,  <w* 
tiou  or  purchase  of  the  necessary  land,  marking  the  bound- 
aries of  the  park,  opening  or  repairing  necessary  roads, 
restoring  the  field  to  its  condition  at  the  time  of  the  battle, 
maps  and  surveys,  and  the  pay  and  expenses  of  the  com- 
missioners and  their  assistant,  the  sum  of  seventy-five 
thousand  dollars,  or  such  portion  thereof  as  may  be  neces- 
sary, is  hereby  appropriated,  out  of  any  moneys  in  the 
Treasury  not  otherwise  appropriated,  and  disbursements  8  b  u  r  8  e ' 
under  this  Act  shall  require  the  approval  of  the  Secretary 


682  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  War,  and  he  shall  make  annual  report  of  the  same  to 
Congress.     Sec.  8,  ibid. 
Location  of     1823.  The   commissioners  appointed  under  the  Act  of 

oflico;  limitation 

on  purchases  ofQongress  approved  December  twenty-seventh,  eighteen 
Mar.  2,  1895,  hundred  and  ninety -four,  to  have  charge,  under  the  Secre- 
tary of  War,  of  the  affairs  of  the  Shiloh  National  Military 
Park,  shall  have  their  office  at  Pittsburg  Landing.  Tennes- 
see, or  at  such  other  point  convenient  to  the  battlefield  of 
Shiloh,  Tennessee,  as  the  Secretary  of  War  may  direct; 
and  the  limit  of  cost  of  all  the  lands  to  be  embraced  in  the 
said  park  is  hereby  fixed  at  not  to  exceed  twenty  thousand 
dollars.  Act  of  March  2,  1895  (28  Stat.  L.,  945}. 

caSnondan?baut     1824<  And  tne  Secretary  of  War  and  the  Secretary  of  the 

tojbunlurinil8li896  -^avv  are  hereby  authorized  to  deliver  to  the  Commissioners 

v.  29,  p.  442.     '  of  the  Shiloh  National  Military  Park,  at  the  park,  upon 

the  requisition   of  said  Commissioners,  such  condemned 

cannon,  cannon  balls,  and  shells  as  may  be  needed  for  the 

purposes  of  the  park.    Act  of  June  11, 1896  (29  Stat.  L.,  442). 

THE   ANTIETAM   BATTLEFIELD. 

et^'ifnes'oVbaf'     1825.  For  the  purpose  of  surveying,  locating,  and  pre- 
tie,  etc.  serving  the  lines  of  battle  of  the  Army  of  the  Potomac  and 

Aug.  30, 1890,  v. 

26,  p.  401.  of  the  Army  of  Northern  Virginia  at  Antietam,  and  for 

marking  the  same,  and  for  locating  and  marking  the  posi- 
tion of  each  of  the  forty-three  different  commands  of  the 
Regular  Army  engaged  in  the  battle  of  Antietam,  and  for 
the  purchase  of  sites  for  tablets  for  the  marking  of  such 
positions,  fifteen  thousand  dollars.  And  all  lands  acquired 
by  the  United  States  for  this  purpose,  whether  by  pur- 
chase, gift,  or  otherwise,  shall  be  under  the  care  and  super- 
vision of  the  Secretary  of  War.  Act  of  August  30, 1890 
(26  Stat.  L.,  401). 

u5i892' v  1826.  For  the  purpose  of  surveying,  locating,  and  pre- 
27,  p.  377.'  serving  the  lines  of  battle  of  the  Army  of  the  Potomac  and 
of  the  Army  of  Northern  Virginia  at  Antietam,  and  for 
marking  the  same,  and  for  locating  and  marking  the  posi- 
tions of  each  of  the  forty-three  different  commands  of  the 
regular  Army  engaged  in  the  battle  of  Antietam,  and  for 
the  purchase  of  sites  for  tablets  for  the  marking  of  such 
position,  as  follows : 

For  cost  of  one  hundred  and  fourteen  tablets,  transport- 
ing and  setting  up  of  same,  purchase  of  one  hundred  and 
fourteen  sites  for  tablets,  salaries  of  board,  including  office 
rent,  hire  of  vehicles,  mileage,  and  for  condemnation  of 
land  and  acquiring  title  for  same,  in  all,  sixteen  thousand 
three  hundred  and  ten  dollars :  Provided,  That  in  acquiring 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  683 

land  for  the  sites  for  tablets  on  the  battlefield,  the  Secre- 
tary of  War  is  authorized  to  proceed  in  accordance  with 
act  approved  March  third,  eighteen  hundred  and  ninety- 
one,  making  appropriations  for  Sundry  Civil  expenses 
under  title  "  Chickamauga  and  Chattanooga  National  ' 
Park."  Act  of  August  5,  1890  (27  Stat.  L.,  401). 

1327.  For  continuing  the  work  of  surveying,  locating,  ^Marking  lines, 
and  preserving  lines  of  battle  of  the  Army  of  the  Potomac  ^"J^-  189:*-v- 
and  of  the  Army  of  Northern  Virginia,  at  Antietam,  and 
for  locating  and  marking  the  positions  of  the  forty -three 
different  commands  of  the  regular  Army  engaged  in  the 
battle  of  Antietam,  and  for  purchase  of  sites  for  tablets 
for  marking  the  same,  and  for  the  purchase  of  roadway  to 
tablets  as  follows:  For  the  purchase  of  fifty  additional 
tablets,  and  transporting  and  setting  up  same;  purchase 
of  fifty  additional  sites  for  tablets  j  salaries  of  board,  in- 
cluding office  rent,  hire  of  vehicles,  and  mileage,  and  for 
the  condemnation  of  the  land  and  acquiring  title  of  the 
same,  and  for  the  purchase  of  land  for  roadway  from  a  Roadway. 
point  on  the  Sharpsburg  and  Hagerstown  turnpike  to  a 
point  on  the  Sharpsburg  and  Boonsboro  turnpike  (said 
land  is  known  as  the  Bloody  Lane  or  Sunken  Eoad),  and 
for  repairing  and  fencing  in  said  road  way;  fifteen  thousand 
dollars :  Provided,  That  the  Secretary  of  War  is  authorized 
to  supply  at  Autietam  such  number  of  cannon  and  cannon  cannon,  etc., 

,  -.         .  .    ,  ,      for  marking  po- 

balls  as  his  judgment  may  approve,  and  which  can  besitious. 
spared,  for  the  purpose  of  marking  the  positions  of  the 
different  commands  engaged  in  the  battle  of  Antietam. 
Act  of  March  5,  1893  (27  Stat.  L.,  599). 

1828.  For  completing  the  work  of  locating,  preserving,    continuing 
and  marking  the  lines  of  battle  at  Autietam,  and  for  prop-  wSar.  2, 1395,  v. 
erly  marking  with  tablets,  each  bearing  a  brief  historical28'1''951 
legend  compiled  without  praise  and  without  censure,  the 
position  occupied  by  the  several  commands  of  the  Armies 
of  the  Potomac  and  of  Northern  Virginia  on  that  field, 
and  for  opening  and  improving  avenues  along  the  positions 
occupied  by  troops  upon  those  lines,  and  for  fencing  the 
same,  nine  thousand  four  hundred  and  twenty-one  dollars, 
to  be  immediately  available,  and  to  be  expended  under  the 
direction  of  the  Secretary  of  War :  Provided,  That  the  Sec- 
retary of  War  be,  and  he  is  hereby,  authorized  to  supply 
fifty  unserviceable  wooden  field-gun  carriages,  of  the  type    Gun  carriages. 
used  during  the  civil  war,  for  the  purpose  of  marking  the 
positions  occupied  by  batteries  of  artillery  on  the  said  field. 
Act  of  March  2,  1895  (28  Stat.  L.,  950). 


684  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

South  Moun-  1829.  For  completing  the  work  of  locating,  preserving, 
Ferry,  Cramp- and  marking  the  positions  of  troops  and  lines  of  battle  of 
shepherds'town.  the  Union  and  Confederate  armies  at  Antietam,  and  the 
29,p.n443.'  'closely  related  battles  of  Harpers  Ferry,  South  Mountain, 
Cramptons  Gap,  and  Shepherdstown,  the  said  lines  and 
positions  to  be  marked  with  cast-iron  tablets,  each  bearing 
a  brief  historical  legend  compiled  without  praise  and  with- 
out censure ;  for  improvement  of  roads  owned  by  the  United 
States  at  Antietam ;  for  monuments  of  cannon  balls  and 
bases  therefor  to  mark  the  localities  where  six  general 
officers  were  killed  ;  for  completing  the  observatory  towers ; 
for  guideposts;  for  preparing  and  publishing  maps  indicat- 
ing the  movements  and  positions  of  troops  engaged  in  the 
battles  and  in  the  Antietam  campaign;  and  for  services 
and  materials  incidental  to  the  foregoing,  seventeen  thou- 
sand dollars,  to  be  expended  under  the  direction  of  the 
Secretary  of  War.  Act  of  June  11,  1896  (29  Stat.  L.,  443). 

THE    YELLOWSTONE    NATIONAL    PARK. 

LIMITS    OF    THE    PARK. 

Public   park     1830.  The  tract  of  land  in  the  Territories  of  Montana  and 
the  head  wai era  Wyoming.  Ivinff  near  the  head-waters  of  the  Yellowstone 

of    the    Yellow-  _/  .,      , 

stone  River.  River,  and  described  as  follows,  to  wit,  commencing  at  the 
84, 8.Tv. IT, p. 82.' junction  of  Gardiner's  Eiver  with  the  Yellowstone  River, 
jjec.2474,  8.  a^£  running  east  to  the  meridian  passing  ten  miles  to  the 
eastward  of  the  most  eastern  point  of  Yellowstone  Lake; 
thence  south  along  said  meridian  to  the  parallel  of  latitude 
passing  ten  miles  south  of  the  most  southern  point  of  Yel- 
lowstone Lake;  thence  west  along  said  parallel  to  the 
meridian  passing  fifteen  miles  west  of  the  most  western 
point  of  Madison  Lake;  thence  north  along  said  meridian 
to  the  latitude  of  the  junction  of  the  Yellowstone  and  Gar- 
diner's Rivers;  thence  east  to  the  place  of  beginning,  is 
reserved  and  withdrawn  from  settlement,  occupancy,  or 
sale  under  the  laws  of  the  United  States,  and  dedicated 
and  set  apart  as  a  public  park  or  pleasuring-ground  for  the 
benefit  and  enjoyment  of  the  people;  and  all  persons  who 
locate,  or  settle  upon,  or  occupy  any  part  of  the  land  thus 
set  apart  as  a  public  park,  except  as  provided  in  the  fol- 
lowing section,  shall  be  considered  trespassers  and  removed 
therefrom.1 
secretary  of  1831.  Such  public  park  shall  be  under  the  exclusive  con- 

the   Interior    to 

have    exclusive  trol  of  the  Secretary  of  the  Interior,  whose  duty  it  shall  be, 

control     ot    the 

park ;  removal  of 

trespassers.  iBy  Executive  proclamations  No.  6,  of  March  30,  1891  (26  Stat.  L.,  23),  and  No.  6, 

Sec.  2,  ibid.  of  September  10,  1891  (27  Stat.  L.,  11),  two  tracts  of  land  adjoining  the  Yellowstone 
Sec.  2475)  B»  S.  Park  in  Wyoming  were  added  to  the  reservation  authorized  by  this  section. 


THE    MILITARY    LAWS   OF    THE   UNITED   STATES.  685 

as  soon  as  practicable,  to  make  and  publish  such  regu- 
lations as  lie  may  deem  necessary  or  proper  for  the  care 
and  management  of  the  same.  Such  regulations  shall  pro- 
vide for  the  preservation,  from  injury  or  spoliation,  of  all 
timber,  mineral  deposits,  natural  curiosities,  or  wonders, 
within  the  park,  and  their  retention  in  their  natural  con- 
dition. The  Secretary  may,  in  his  discretion,  grant  leases 
for  building  purposes  for  terms  not  exceeding  ten  years,  of 
small  parcels  of  ground,  at  such  places  in  the  park  as  may 
require  the  erection  of  buildings  for  the  accommodation  of 
visitors  5  all  of  the  proceeds  of  such  leases,  and  all  other 
revenues  that  may  be  derived  from  any  source  connected 
with  the  park,  to  be  expended  under  his  direction  in  the 
management  of  the  same,  and  the  construction  of  roads 
and  bridle-paths  therein.  He  shall  provide  against  the 
wanton  destruction  of  the  fish  and  game  found  within  the 
park,  and  against  their  capture  or  destruction  for  the  pur- 
pose of  merchandise  or  profit.  He  shall  also  cause  all  persons 
trespassing  upon  the  same  to  be  removed  therefrom,  and 
generally  is  authorized  to  take  all  such  measures  as  may 
be  necessary  or  proper  to  fully  carry  out  the  objects  and 
purposes  of  this  section. 

JURISDICTION. 

1832.  That  the  State  of  Wyoming  is  hereby  declared  to    Wyoming  ad- 

mitted  as  a  new 

be  a  State  of  the  United  States  of  America,  and  is  hereby  state, 
declared  admitted  into  the  Union  on  an  equal  footing  withi890,v,26,p.222.' 
the  original  States  in  all  respects  whatever;  and  that  the 
constitution  which  the  people  of  Wyoming  have  formed  for    constitution 

•      ratified,  etc. 

themselves  be,  and  the  same  is  hereby,  accepted,  ratified, 
and  confirmed.  Sec.  1,  act  of  July  10, 1890  (26  Stat.  L.,  222). 

1833.  That  the  said  State  shall  consist  of  all  the  terri-  .state  bound* 

rlcS. 

tory  included  within  the  following  boundaries,  to  wit: 
Commencing  at  the  intersection  of  the  twenty-seventh 
meridian  of  longitude  west  from  Washington  with  the 
forty-fifth  degree  of  north  latitude  and  running  thence 
west  to  the  thirty-fourth  meridian  of  west  longitude; 
thence  south  to  the  forty-first  degree  of  north  latitude; 
thence  east  to  the  twenty- seventh  meridian  of  west  longi- 
tude, and  thence  north  to  the  .place  of  beginning :  Provided, 
That  nothing  in  this  act  contained  shall  repeal  or  affect to 
any  act  of  Congress  relating  to  the  Yellowstone  National  ^tional  Park> 
Park,  or  the  reservation  of  the  park  as  now  defined,  or  as 
may  be  hereafter  defined  or  extended,  or  the  power  of  the 
United  States  over  it;  and  nothing  contained  in  this  act 
shall  interfere  with  the  right  and  ownership  of  the 


686  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

/ 

States  in  said  park  and  reservation  as  it  now  is  or  may 

hereafter  be  denned  or  extended  by  law;  but  exclusive 

Legislation,     legislation,  in  all  cases  whatsoever,  shall  be  exercised  by 

jurisdiction.    tlie  United  States,  which  shall  have  exclusive  control  and 


Lawful    state  jurisdiction  over  the  same:  but  nothing  in  this  proviso 

process    may  be1'  ' 

served.  contained  shall  be  construed  to  prevent  the  service  within 

said  park  of  civil  and  criminal  process  lawfully  issued  by 

NO  indemnity  the  authority  of  said  State  ;  and  the  said  State  shall  not 

those  in'park.  orbe  entitled  to  select  indemnity  school  lands  for  the  six- 

teenth and  thirty-sixth  sections  that  may  be  in  said  park 

reservation  as  the  same  is  now  denned  or  may  be  hereafter 

denned.     Sec.  2,  ibid. 

I 

PROTECTION   OF    BIRDS    AND   ANIMALS. 

sole  juristic-     1834.  That  the  Yellowstone  National  Park,  as  its  bounda- 

tion    of    United 

states.      ^     ries  now  are  defined,  or  as  they  may  be  hereafter  defined 

28,  p.  73.  '          or  extended,  shall  be  under  the  sole  and  exclusive  juris- 

diction of  the  United  States;  and  that  all  the  laws  appli- 

cable to  places  under  the  sole  and  exclusive  jurisdiction 

of  the  United  States  shall  have  force  and  effect  in  said 

park  :  Provided,  however,  That  nothing  in  this  Act  shall  be 

construed  to  forbid  the  service  in  the  park  of  any  civil  or 

state  process,  criminal  process  of  any  court  having  jurisdiction  in  the 

States  of  Idaho,  Montana,  and  Wyoming.     All  fugitives 

from  justice  taking  refuge  in  said  park  shall  be  subject  to 

the  same  laws  as  refugees  from  justice  found  in  the  State 

of  Wyoming.     Sec.  1,  act  of  May  7,  1894  (28  Stat.  L.,  73). 

w^oS^judf     1835>  That  said  Park>  for  a11  the  Purposes  of  this  Act, 

Ciseci2t<wd       suall  constitute  a  part  of  the  United  States  judicial  dis- 

trict of  Wyoming,  and  the  district  and  circuit  courts  of 

the  United  States  in  and  for  said  district  shall  have  juris- 

diction of  all  offenses  committed  within  said  park.     Sec.  2, 

ibid. 

1836>  That  if  any  offense  shall  be  committed  in  said 
Yell°wstone  National  Park,  which  offense  is  not  prohibited 
or  the  punishment  is  not  specially  provided  for  by  any 
law  of  the  United  States  or  by  any  regulation  of  the  Secre- 
tary of  the  Interior,  the  offender  shall  be  subject  to  the 
same  punishment  as  the  laws  of  the  State  of  Wyoming  in 
force  at  the  time  of  the  commission  of  the  offense  may  pro- 
vide for  a  like  offense  in  the  said  State;  and  no  subsequent 
repeal  of  any  such  law  of  the  State  of  Wyoming  shall 
affect  any  prosecution  for  said  offense  committed  within 
said  park.  Sec.  3,  ibid. 


hiSSnibifisSn°f     *83^  That  all  hunting,  or  the  killing,  wounding,  or  cap- 

etsec  4  \bid    "'  Curing  at  any  time  of  any  bird  or  wild  animal,  except 

dangerous  animals,  when  it  is  necessary  to  prevent  them 


THE   MILITARY    LAWS   OF   THE   UNITED    STATES.  687 

from  destroying  human  life  or  inflicting  an  injury,  is  pro- 

hibited within  the  limits  of  said  park;  nor  shall  any  fish 

be  taken  out  of  the  waters  of  the  park  by  means  of  seines, 

nets,  traps,  or  by  the  use  of  drugs  or  any  explosive  sub- 

stances or  compounds,  or  in  any  other  way  than  by  hook 

and  line,  and  then,  only  at  such  seasons  and  in  such  times 

and  manner  as  may  be  directed  by  the  Secretary  of  the 

Interior.    That  the  Secretary  of  the  Interior  shall  make 

and  publish  such  rules  and  regulations  as  he  may  deem    Regulations. 

necessary  and  proper  for  the  management  and  care  of 

the  park  and  for  the  protection  of  the  property  therein, 

especially  for  the  preservation  from  injury  or  spoliation  of 

all  timber,  mineral  deposits,  natural  curiosities,  or  wonder- 

ful objects  within  said  park;  and  for  the  protection  of  the 

animals  and  birds  in  the  park,  from  capture  or  destruction, 

or  to  prevent  their  being  frightened  or  driven  from  the 

park;  and  he  shall  make  rules  and  regulations  governing 

the  taking  of  fish  from  the  streams  or  lakes  in  the  park. 

Possession  within  the  said  park  of  the  dead  bodies,  or  any  ^atfon166    °f 

part  thereof,  of  any  wild  bird  or  animal  shall  be  prima 

facie  evidence  that  the  person  or  persons  having  the  same 


are  guilty  of  violating  this  Act.     Any  person  or  persons,  or    Penalty 

lawful  transpor- 

stage  or  express  company  or  railway  company,  receiving  tation,  etc. 
for  transportation  any  of  the  said  animals,  birds,  or  fish  so 
killed,  taken,  or  caught  shall  be  deemed  guilty  of  a  mis 
demeanor,  and  shall  be  fined  for  every  such  offense  not 
exceeding  three  hundred  dollars.  Any  person  found  guilty 
of  violating  any  of  the  provisions  of  this  Act  or  any  rule  or 
regulation  that  may  be  promulgated  by  the  Secretary  of 
the  Interior  with  reference  to  the  management  and  care 
of  the  park,  or  for  the  protection  of  the  property  therein, 
for  the  preservation  from  injury  or  spoliation  of  timber, 
mineral  deposits,  natural  curiosities  or  wonderful  objects 
within  said  park,  or  for  the  protection  of  the  animals, 
birds  and  fish  in  the  said  park,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  subjected  to  a  fine  of  not  more 
than  one  thousand  dollars  or  imprisonment  not  exceeding 
two  years,  or  both,  and  be  adjudged  to  pay  all  costs  of  the 
proceedings. 

1838.  That  all  guns,  traps,  teams,  horses,  or  means  of    Forfeiture   of 

,  .  „  ,  guns,  trapa,  etc. 

transportation  of  every  nature  or  description  used  by  any 
person  or  persons  within  said  park  limits  when  engaged  in 
killing,  trapping,  ensnaring,  or  capturing  such  wild  beasts, 
birds,  or  wild  animals  shall  be  forfeited  to  the  United 
States,  and  may  be  seized  by  the  officers  in  said  park  and 
held  pending  the  prosecution  of  any  person  or  persons 
arrested  under  charge  of  violating  the  provisions  of  this 


688  THE    MILITARY    LAWS   OF    THE    UNITED    STATES. 

Act,  and  upon  conviction  under  this  Act  of  such  person  or 
persons  using  said  guns,  traps,  teams,  horses,  or  other 
means  of  transportation  such  forfeiture  shall  be  adjudi- 
cated as  a  penalty  in  addition  to  the  other  punishment 
provided  in  this  Act.  Such  forfeited  property  shall  be  dis- 
posed of  and  accounted  for  by  and  under  the  authority  of 
the  Secretary  of  the  Interior.  Sec.  4,  ibid. 
commissioner.  1339.  ^hat  the  United  States  circuit  court  in  said  dis- 

Sec.  5,  ^b^d. 

trict  shall  appoint  a  commissioner,  who  shall  reside  in  the 
park,  who  shall  have  jurisdiction  to  hear  and  act  upon  all 
complaints  made,  of  any  and  all  violations  of  the  law,  or 
of  the  rules  and  regulations  made  by  the  Secretary  of  the 
Interior  for  the  government  of  the  park,  and  for  the  pro- 
tection of  the  animals,  birds,  and  fish  and  objects  of  interest 
therein,  and  for  other  purposes  authorized  by  this  Act. 

Dutiea.  Such  commissioner  shall  have  power,  upon  sworn  informa- 

tion, to  issue  process  in  the  name  of  the  United  States  for 
the  arrest  of  any  person  charged  with  the  commission  of 
any  misdemeanor,  or  charged  with  the  violation  of  the 
rules  and  regulations,  or  with  the  violation  of  any  provi- 
sion of  this  Act  prescribed  for  the  government  of  said 
park,  and  for  the  protection  of  the  animals,  birds,  and  fish 
in  the  said  park,  and  to  try  the  person  so  charged,  and,  if 
found  guilty,  to  impose  the  punishment  and  adjudge  the 

Appeals.  forfeiture  prescribed.  In  all  cases  of  conviction  an  appeal 
shall  lie  from  the  judgment  of  said  commissioner  to  the 
United  States  district  court  for  the  district  of  Wyoming, 
said  appeal  to  be  governed  by  the  laws  of  the  State  of 
Wyoming  providing  for  appeals  in  cases  of  misdemeanor 
from  justices  of  the  peace  to  the  district  court  of  said 
State;  but  the  United  States  circuit  court  in  said  district 
may  prescribe  rules  of  procedure  and  practice  for  said  com- 
missioner in  the  trial  of  cases  and  for  appeal  to  said  United 
in  fel-  States  district  court.  Said  commissioner  shall  also  have 
power  to  issue  process  as  hereinbefore  provided  for  the 
arrest  of  any  person  charged  with  the  commission  of  any 
felony  within  the  park,  and  to  summarily  hear  the  evidence 
introduced,  and,  if  he  shall  determine  that  probable  cause 
is  shown  for  holding  the  person  so  charged  for  trial,  shall 
cause  such  person  to  be  safely  conveyed  to  a  secure  place 
for  confinement,  within  the  jurisdiction  of  the  United 
States  district  court  in  said  State  of  Wyoming,  and  shall 
certify  a  transcript  of  the  record  of  his  proceedings  and 
the  testimony  in  the  case  to  the  said  court,  which  court 
shall  have  jurisdiction  of  the  case:  Provided,  That  the  said 

Ban,  etc.         commissioner  shall  grant  bail  in  all  cases  bailable  under 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


689 


the  laws  of  the  United  States  or  of  said  State.  All  process 
issued  by  the  commissioner  shall  be  directed  to  the  mar- 
shal of  the  United  States  for  the  district  of  Wyoming;  but 
nothing  herein  contained  shall  be  construed  as  preventing 
the  arrest  by  any  officer  of  the  Government  or  employee 
of  the  United  States  in  the  park  without  process  of  any 
person  taken  in  the  act  of  violating  the  law  or  any  regula- 
tion of  the  Secretary  of  the  Interior:  Provided,  That  the 
said  commissioner  shall  only  exercise  such  authority  and 
powers  as  are  conferred  by  this  Act.  Sec.  5,  ibid. 

1840.  That  the  marshal  of  the  United  States  for  the  dis- 
trict of  Wyoming  may  appoint  one  or  more  deputy  marshals 
for  said  park,  who  shall  reside  in  said  park,  and  the  said 
United  States  district  and  circuit  courts  shall  hold  one 
session  of  said  courts  annually  at  the  town  of  Sheridan  in 
the  State  of  Wyoming,  and  may  also  hold  other  sessions  at 
any  other  place  in  said  State  of  Wyoming  or  in  said  National 
Park  at  such  dates  as  the  said  courts  may  order.     Sec.  6, 
ibid. 

1841.  That  the  commissioner  provided  for  in  this  Act 
shall,  in  addition  to  the  fees  allowed  by  law  to  commission- 
ers of  the  circuit  courts  of  the  United  States,  be  paid  an 
annual  salary  of  one  thousand  dollars,  payable  quarterly, 
and  the  marshal  of  the  United  States  and  his  deputies,  and 
the  attorney  of  the  United  States  and  his  assistants  in  said 
district,  shall  be  paid  the  same  compensation  and  fees  as 
are  now  provided  by  law  for  like  services  in  said  district. 
Sec.  7,  ibid. 

1842.  That  all  costs  and  expenses  arising  in  cases  under 
this  Act,  and  properly  chargeable  to  the  United  States, 
shall  be  certified,  approved,  and  paid  as  like  costs  and 
expenses  in  the  courts  of  the  United  States  are  certified, 
approved,  and  paid  under  the  laws  of  the  United  States. 
Sec.  5,  ibid. 

1843.  That  the  Secretary  of  the  Interior  shall  cause  to 
be  erected  in  the  park  a  suitable  building  to  be  used  as  a 
jail,  and  also  having  in  said  building  an  office  for  the  use 
of  the  commissioner,  the  cost  of  such  building  not  to 
exceed  five  thousand  dollars,  to  be  paid  out  of  any  moneys 
in  the  Treasury  not  otherwise  appropriated  upon  the  cer- 
tificate of  the  Secretary  as  a  voucher  therefor.     Sec.  9,  ibid. 

1844.  That  this  Act  shall  not  be  construed  to  repeal 
existing  laws  conferring  upon  the  Secretary  of  the  Interior 
and  the  Secretary  of  War  certain  powers  with  reference 
to  the  protection,  improvement,  and  control  of  the  said 
Yellowstone  National  Park.     Sec.  10,  ibid. 

1919 44 


Summary     ar- 
rests. 


Limit    of    au- 
thority. 


Deputy  mar- 
shals. 
Sec.  6,  ibid. 


Terms  of  court. 


Fees:  etc. 
Sec.  7,  ibid. 


Costs,  etc. 
Sec.  8,  ibid. 


Jail. 


Existing  la-ws. 


690  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


EMPLOYEES. 


Employees.          1845.  For  every  purpose  and  object  necessary  for  the 

22,pa62oi  July  7,'  protection,  preservation,  and  improvement  of  the  Yellow- 

884,  v.  23,  P.  499.  ^Q^Q  National  Park,  including  compensation  of  superin- 


tendent and  employees,  forty  thousand  dollars,  two  thou- 
sand dollars  of  said  amount  to  be  paid  annually  to  a 
superintendent  of  said  park  and  not  exceeding  nine  hun- 
dred dollars  annually  to  each  of  ten  assistants,  all  of  whom 
shall  be  appointed  by  the  Secretary  of  the  Interior,  and 
reside  continuously  in  the  park  and  whose  duty  it  shall  be 
to  protect  the  game,  timber,  and  objects  of  interest  therein; 
the  balance  of  the  sum  appropriated  to  be  expended  in 
the  construction  and  improvement  of  suitable  roads  and 
bridges  within  said  park,  under  the  supervision  and  direc- 
tion of  an  engineer  officer  detailed  by  the  Secretary  of  War 
for  that  purpose.1  Act  of  March  3,  1883  (22  Stat.  !>.,  626). 

LEASES^ 

Lease    of     1846.  That  the  Secretary  of  the  Interior  is  hereby  author- 
grounds  ;    condi- 
tions. jzed  and  empowered  to  lease  to  any  person,  corporation,  or 

Mar.  3,  1883,  v.  .  _ 

22,  p.  626;  Aug.  3,  company,  for  a  period  not  exceeding  ten  years,  at  such 
annual  rental  as  the  Secretary  of  the  Interior  may  deter- 
mine, parcels  of  land  in  the  Yellowstone  National  Park,  of 
not  more  than  ten  acres  in  extent  for  each  tract  and  not  in 
excess  of  twenty  acres  in  all  to  any  one  person,  corpora- 
tion, or  company  on  which  may  be  erected  hotels  and  nec- 
Naturai  curi  essarv  outbuildings  :  Provided,  That  such  lease  or  leases 

osities  excluded.  _,J  . 

shall  not  include  any  of  the  geysers  or  other  objects  of 
curiosity  or  interest  in  said  park,  or  exclude  the  public 
from  free  and  convenient  approach  thereto  or  include  any 
ground  within  one-eighth  of  a  mile  of  any  of  the  geysers 
or  the  Yellowstone  Falls,  the  Grand  Canyon,  or  the  Yellow- 
stone River,  Mammoth  Hot  Springs,  or  any  object  of  curi- 
osity in  the  park.  Act  of  August  5,  1894  (28  Stat.  L.,  222}. 
^The  same  sub-  1847.  That  such  leases  shall  not  convey,  either  expres- 
Aug.  3,  1894,  v.  gively  or  by  implication,  any  exclusive  privilege  within  the 
park  except  upon  the  premises  held  thereunder  and  for  the 
time  therein  granted.  Every  lease  hereafter  made  for  any 
property  in  said  park  shall  require  the  lessee  to  observe 

i  The  act  of  June  16,  1880  (21  Stat.  L.,  273),  contained  an  appropriation  of  $15,000 
for  the  care  and  preservation  of  the  park.  The  act  of  March  3,  1881  (chap.  132,  21 
Stat.  L.,  421),  contained  an  appropriation  of  $89.76,  and  chapter  134  of  the  same  act 
(21.  Stat.  L.,  421)  contained  an  appropriation  of  $15,000  for  a  similar  purpose.  The 
act  of  August5,  1882(21  Stat.  L.,  276),  contained  an  appropriation  of  $155  for  de- 
ficiencies. The  act  of  August?,  1882  (22  Stat.  L.,  329),  contained  an  appropriation 
of  $18,380.41  for  care  and  preservation  and  provided  for  the  office  of  superintendent. 
The  provisions  of  this  statute  were  repeated  in  the  act  of  March  3,  1885  (23  Stat. 
L.,  499). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  691 

and  obey  each  and  every  provision  in  any  Act  of  Congress, 
and  every  rule,  order,  or  regulation  made,  or  which  may 
hereafter  be  made  and  published  by  the  Secretary  of  the 
Interior  concerning  the  use,  care,  management,  or  govern- 
ment of  the  park,  or  any  object  or  property  therein,  under 
penalty  of  forfeiture  of  such  lease,  and  every  such  lease 
shall  be  subject  to  the  right  of  revocation  and  forfeiture, 
which  shall  therein  be  reserved  by  the  Secretary  of  the 
Interior:  And  provided  further.  That  persons  or  corpora- 
tions now  holding  leases  of  ground  in  the  park  may,  upon 
the  surrender  thereof,  be  granted  new  leases  hereuuder, 
and  upon  the  terms  and  stipulations  contained  in  their 
present  leases,  with  such  modifications,  restrictions,  and 
reservations  as  the  Secretary  of  the  Interior  may  prescribe. 
This  act,  however,  is  not  to  be  construed  as  mandatory 
upon  the  Secretary  of  the  Interior,  but  the  authority  herein 
given  is  to  be  exercised  in  his  sound  discretion.  Ibid. 

1848.  The  Secretary  of  War,  upon  the  request  of  the  tr^8*  Vto.,  for 
Secretary  of  the  Interior,  is  hereby  authorized  and  directed  v*^  e  c  *  ion  of 
to  make  the  necessary  details  of  troops  to  prevent  tres-  22Ma62|'  1883)  v' 
passers  or  intruders  from  entering  the  park  for  the  purpose 

of  destroying  the  game  or  objects  of  curiosity  therein,  or 
for  any  other  purpose  prohibited  by  law,  and  to  remove 
such  persons  from  the  park  if  found  therein.  Act  of  March 
3,  1883  (22  Mat.  L.,  626). 

1849.  For  the  construction  and  improvement  of  suitable   Construction 

of    roads    and 

roads  and  bridges  within  the  park,  under  the  supervision  bridges. 
and  direction  of  an  engineer  officer  detailed  by  the  Secre-  24,  p"fio.' 
tary  of  War  for  that  purpose,  twenty  thousand  dollars.1 
Act  of  August  4,  1886  (24  Stat.  L.,  240). 

1850.  For  the  improvement  of  the  Yellowstone  National 


Park,  seventy-five  thousand  dollars,  the  same,  together    Mar.  3,  i89i,  v. 

with  the  unexpended  balance  of  appropriations  already 

made,  to  be  expended  by  and  under  the  direction  of  the 

Secretary  of  War.     For  the  repair,  maintenance,  reloca- 

tion, and  completion  of  roads,  bridges,  and  paths  already 

in  use  and  necessary  to  reach  objects  of  natural  interest  in 

the  Park;     *    *     *     any  unexpended  balance  to  be  applied 

to  the  construction  of  additional  roads,  bridges,  footways, 

and  bridle  paths,  as  the  public  service  may  require,  in  the 

discretion  of  the  Secretary  of  War.     Act  of  March  3,  1891 

(26  Stat.  L.,  977). 

JThe  provisions  of  this  statute  were  repeated  in  the  acts  of  August  6,  1886  (24 
Stat.  LM  240)  ;  October  9,1888,  which  appropriated  the  sum  of  $25,000  for  road  and 
bridge  construction  and  supervision;  March  2,1889  (25  Stat.  L.,  962),  which  appro- 
priated the  sum  of  $50,000  for  road  and  bridge  construction  and  for  the  improvement 
of  roads  within  the  park. 


692  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Completing,      1851.  For  completing  the  road  from  Upper  Geyser  Basin 

etc.,  roads,  etc. 

AUR. so, isoo.v.  to  and  around  Shoshone  Lake;  thence  across  the  Conti- 
nental Divide  to  Yellowstone  Lake  and  River,  and  down 
the  latter  to  the  Grand  Canyon;  thence  to  Yancey's,  to 
intersect  the  road  from  Cook  City  to  Mammoth  Hot  Springs ; 
in  completing;  the  Gibbon  and  Madison  Canyon  roads;  in 
improving  and  maintaining  the  old  road  from  Lower  Basin 
and  Firehole  to  the  Falls  of  the  Yellowstone;  in  maintain- 
ing roads  and  bridges  generally  throughout  the  park,  and 
in  making  some  small  extensions  to  existing  roads,  sev- 
enty-five thousand  dollars:  Provided,  That  not  less  than 
fifty  thousand  dollars  of  this  appropriation  shall  be  ex- 
pended for  work  to  be  let  in  sections,  after  advertisement, 
to  the  lowest  responsible  bidder  or  bidders  therefor,  to  be 
executed  under  the  supervision  and  inspection  of  an  engi- 
neer officer  of  the  Army  under  the  direction  of  the  Secretary 
of  War.  Act  of  August  30,  1890  (26  Stat.  L.,  398). 

ro5fspetcir'  et°M     1852.  For  the  improvement  of  the  Yellowstone  National 

Mai^s,  i89i,v.  Park,  seventy-five  thousand  dollars,  the  same,  together 

with  the  unexpended  balance  of  appropriations  already 

made,  to  be  expended  by  and  under  the  direction  of.  the 

Secretary  of  War. 

For  the  repair,  maintenance,  relocation,  and  completion 
of  roads,  bridges,  and  paths  already  in  use  and  necessary 
to  reach  objects  of  natural  interest  in  the  Park; 

For  the  construction  of  a  road  from  Grand  Canon  to 
Yellowstone  Lake  outlet,  thence  to  the  thumb  of  the  Yel- 
lowstone Lake,  thence  by  the  shortest  practicable  route  to 
Fountain  Geyser ;  any  unexpended  balance  to  be  applied 
to  the  construction  of  additional  roads,  bridges,  footways, 
and  bridle  paths,  as  the  public  service  may  require,  in  the 
discretion  of  the  Secretary  of  War.  Act  of  March  3,  1891 
(26  Stat.  L.,  977). 

^improvement,  1953  por  the  improvement  of  the  Yellowstone  National 
Park,  forty-five  thousand  dollars ;  the  same  to  be  expended 
by,  and  under  the  direction  of  the  Secretary  of  War:  Pro- 
vided, That  fifteen  thousand  dollars  of  this  amount,  or  so 
much  thereof  as  may  be  necessary  may  be  expended,  in 
the  discretion  of  the  Secretary  of  War,  for  the  construction 
of  a  road  from  the  Upper  Geyser  Basin  to  a  point  on  Snake 
River  where  it  crosses  the  southern  boundary  of  the  park.1 
Act  of  August  5,  1892  (27  Stat.  L.,  376). 
1854.  For  the  improvement  of  the  Yellowstone  National 

28,  p.  403.  Park,  to  be  expended  under  the  direction  of  the  Secretary 

of  War,  thirty  thousand  dollars. 

1  The  act  of  March  3, 1893  (27  Stat.  I,.,  598),  appropriated  the  sum  of  $30,000  for  the 
improvement  of  the  park,  to  be  expended  under  the  direction  of  the  Secretary  of 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  693 

For  salary  of  commissioner  provided  for  in  the  Act  to 
protect  the  birds  and  animals  in  Yellowstone  National 
Park  and  to  punish  crimes  in  said  park,  approved  May 
seventh,  eighteen  hundred  and  ninety-four,  one  thousand 
dollars.  Act  of  August  1$,  1894  (28  Stat.  L.,  403). 

1855.  For  the  improvement  and  protection  of  the  Yellow-    improvements, 
stone  National  Park,  to  be  expended  by  and  under  the 6  Mar.  2,  ISQS,  v. 
direction  of  the  Secretary  of  War,  thirty  thousand  dollars. 

For  salary  of  commissioner  provided  for  in  the  Act  to 
protect  the  birds  and  animals  in  Yellowstone  National 
Park  and  to  punish  crimes  in  said  park,  approved  May 
seventh,  eighteen  hundred  and  ninety-four,  one  thousand 
dollars.  Act  of  March  2,  1895  (28  Stat.  L.,  945). 

FOREST   RESERVATIONS. 

1856.  Whereas,  the  rapid  destruction  of  timber  and  oriia-    Preamble, 
mental  trees  in  various  parts  of  the  United  States,  some    Big  trees, 
of  which  trees  are  the  wonders  of  the  world  on  account  of 

their  size  and  the  limited  number  growing,  makes  it  a  mat- 
ter of  importance  that  at  least  some  of  said  forests  should 
be  preserved :  Therefore 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled ,  Tliat 
the  tract  of  land  in  the  State  of  California  known  and 

o6pt.  J5, 1890,  V. 

described  as  township  numbered  eighteen  south,  of  range  26,  p.  478. 
numbered  thirty  east,  also  township  eighteen  south  range 
thirty-one  east;  and  sections  thirty-one,  thirty-two,  thirty- 
three,  and  thirty-four,  township  seventeen,  south  range 
thirty  east,  all  east  of  Mount  Diablo  meridian,  is  hereby 
reserved  and  withdrawn  from  settlement,  occupancy,  or 
sale  under  the  laws  of  the  United  States,  and  dedicated 
and  set  apart  as  a  public  park,  or  pleasure  ground,  for  the 
benefit  and  enjoyment  of  the  people;  and  all  persons  who 
shall  locate  or  settle  upon,  or  occupy  the  same  or  any  part  Trespassers. 
thereof,  except  as  hereinafter  provided,  shall  be  considered 
trespassers  and  removed  therefrom.  Act  of  September  25, 
1890  (26  Stat.  L.,  478). 

1857.  That  said  public  park  shall  be  under  the  exclusive   Secretary  of  in- 

terior  to  control. 

control  of  the  Secretary  of  the  Interior,  whose  duty  it  shall 

be,  as  soon  as  practicable,  to  make  and  publish  such  rules 

and  regulations  as  he  may  deem  necessary  or  proper  for    j^^SS8' 

the  care  and  management  of  the  same.     Such  regulations 

shall  provide  for  the  preservation  from  injury  of  all  timber, 

mineral  deposits,  natural  curiosities  or  wonders  within  said 

park,  and  their  retention  in  their  natural  condition.    The 

Secretary  may,  in  his  discretion,  grant  leases  for  building  buddings.8 

purposes  for  terms  not  exceeding  ten  years  of  small  parcels 


694  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

of  ground  not  exceeding  five  acres,  at  such  places  in  said 

park  as  shall  require  the  erection  of  buildings  for  the  ac- 

Expendituro of  commodation  of  visitors:  all  of  the  proceeds  of  said  leases 

revenues.  ,        _  ,    „ 

and  other  revenues  that  may  be  derived  from  any  source 
connected  with  said  park  to  be  expended  under  his  direc- 
tion in  the  management  of  the  same  and  the  construction 
of  roads  and  paths  therein.  He  shall  provide  against  the 
Destruction  of  wanton  destruction  of  the  fish  and  game  found  within  said 

fish  and  game. 

park,  and  against  their  capture  or  destruction,  for  the  pur- 
Re  in ova i  of pOSes  of  merchandise  or  profit.     He  shall  also  cause  all 

trespassers,  etc.   -1- 

persons  trespassing  upon  the  same  after  the  passage  of 
this  act  to  be  removed  therefrom,  and,  generally,  shall  be 
authorized  to  take  all  such  measures  as  shall  be  necessary 
or  proper  to  fully  carry  out  the  objects  and  purposes  of  this 
act.1  Sec.  2,  ibid. 

/Forest  reserva-  1858.  That  the  President  of  the  United  States  may,  from 
1)1  sic.  24,  Mar.  3,  time  to  time,  set  apart  and  reserve,  in  any  State  or  Terri- 

891>  Vf  26)  p' 1103' tory  having  public  land  bearing  forests,  in  any  part  of  the 
public  lands  wholly  or  in  part  covered  with  timber  or  under- 
growth, whether  of  commercial  value  or  not,  as  public  res- 
ervations, and  the  President  shall,  by  public  proclamation, 
declare  the  establishment  of  such  reservations  and  the 
limits  thereof.2  Sec.  24,  act  of  March  5,  1891  (26  Stat.  L., 
1103). 


1  The  act  of  October  1,  1890  (26  Stat.  L.,  650),  set  apart  certain  tracts  of  land  in 
California  as  forest  reservations  and  provided  that  all  persona  who  should  locate  or 
settle  upon,  or  occupy  the  same  or  any  part  thereof,  "shall  be  considered  as  tres- 
passers and  removed  therefrom."    This  statute  conferred  exclusive  control  over  the 
reserved  tracts  upon  the  Secretary  of  the  Interior.     By  section  8  of  the  act  of  June 
5,  1880  (21  Stat.  L.,  204),  a  tract  of  land  in  Colorado,  designated  in  the  statute  as  the 
Uncompahgre  Park,  was  set  apart  for  the  benefit  and  enjoyment  of  the  people. 

2  Under  the  authority  conferred  by  this  statute  the  following  forest  reservations 
have  been  declared  by  the  President:  A  tract  adjoining  the  Yellowstone  Park  in 
Wyoming,  Executive  Proclamations  No.  6,  March  30, 1891  (26  Stat.  L.,  23),  and  No.  6, 
September  10,  1891  (27  Stat.  L.,  11) ;  the  Bull  Run  Reservation  in  Oregon,  Executive 
Proclamation  No.  28, 1892  (27  ibid.,  49) ;  the  Pecos  River  Reservation  in  New  Mexico, 
Executive  Proclamation  No.  12,  January  11. 1892  (ibid.,  p.  20) ;  the  Pikes  Peak  Res- 
ervation in  Colorado,  Executive  Proclamations  No.  15,  February  11, 1892  (ibid.,  p.  28), 
and  No.  21,  March  18,  1892  (ibid.,  p.  36) ;  the  Plum  Creek  Reservation  in  Colorado, 
Executive  Proclamation  No.  29,  June  23,  1892  (ibid.,  p.  51) ;  the  White  River  Plateau 
in  Colorado   Executive  Proclamation  No.  8.  October  16, 1891  (ibid.,  p.  15). 

The  act  of  March  3,  1875  (18  Stat.  L.,  517),  creating  the  national  park  on  the  island 
of  Mackinac,  Michigan,  was  repealed  by  the  act  of  March  2,  1895  (28  Stat.  L  ,  946), 
and  the  lauds  composing  the  same  were  granted  to  the  State  of  Michigan  for  use  as 
a  State  park,  subject  to  the  condition  "that  whenever  the  State  ceases  to  use  the 
land  for  the  purpose  aforesaid  it  shall  revert  to  the  United  States." 


XLIV. 


NATIONAL   CEMETERIES. 


Par. 

1868, 1869.  Interments. 

1870, 1871.  Jurisdiction,  criminal 
offenses. 

1872, 1873.  The  United  States  cem- 
etery near  the  City  of 
Mexico. 

1874.  Encroachments  by  railroads. 


Par. 

1859.  Maintenance     of     national 

cemeteries. 

1860.  Acquisition  of  lands. 

1861.  Appraisement. 

1862.  Payment. 
1863-1865.  Superintendents. 
1866. 1867.  Inclosures,  headstones, 

and  registers. 

1859.  The  Secretary  of  War  shall  provide  for  the  care  and    Maintenance 

*  J  or  national  cem- 

mairitenance  of  the  National  Military  Cemeteries  and  forgeries. 

It.    b.    4o7b,    p. 

this  purpose  shall  submit  an  estimate  with  his  annual  esti-tti 
mates  to  Congress  and  Section  four  thousand  eight  hundred  19,  p.  99.  ' 
and  seventy  six  of  the  Revised  Statutes  is  hereby  repealed. 
Act  of  July  21,  1876  (19  Stat.  L.,  99). 

1860.  The  Secretary  of  War  shall  purchase  from  the^^^^Woaef 
owners  thereof,  at  such  price  as  maybe  mutually  agreed    Feb.  22,18*7,0. 
upon  between  the  Secretary  and  such  owners,  such  real  400  ;juiy24,i876,' 

.       ,   .      .      ,  .,     ,,  ,  „        ,.       c.  226,  v.  19,  p.  99; 

estate  as  in  his  judgment  is  suitable  and  necessary  for  the  Mar.  2,  1377,  c. 

„  .  .     *          jm  .    .  »  ..  ,  83,  v.  19,  p.  269. 

purpose  of  carrying  into  effect  the  provisions  for  national  sec. 4870, B.S. 
cemeteries,  and  obtain  from  such  owners  the  title  in  fee 
simple  for  the  salne.  And  in  case  the  Secretary  of  War  is 
not  able  to  agree  with  any  owner  upon  the  price  to  be  paid 
for  any  real  estate  needed  for  such  purpose,  or  to  obtain 
from  such  owner  title  in  fee  simple  for  the  same,  the  Secre- 
tary is  hereby  authorized  to  enter  upon  and  appropriate 
any  real  estate  which,  in  his  judgment,  is  suitable  and 
necessary  for  such  purposes. 

1861.  The  Secretary  of  War  or  the  owners  of  any  real    ^f^8^"^ 
estate  thus  entered  upon  and  appropriated,  are  authorized  01,  «•  5,  v.  u.'p. 
to  make  application  for  an  appraisement  of  real  estate  thus    sec.  4S7i,R.s. 
entered  upon  and  appropriated,  to  any  circuit  or  district 

court  within  any  State  or  district  where  such  real  estate  is 
situated;  and  such  courts  shall,  upon  such  application,  and 
in  such  mode  and  under  such  rules  and  regulations  as  it 
may  adopt,  make  a  just  and  equitable  appraisement  of  the 


696      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

cash  value  of  the  several  interests  of  eacli  and  every  owner 
of  such  real  estate  and  improvements  thereon. 
Payment.  1862.  When  appraisement  of  the  real  estate  thus  entered 

Sec.  6,  ibid.  r 

Mar.  2,  1877,  c.  upon  and  appropriated  has  been  made  under  the  order 

fi*3  v  1  Q  n  2fiQ 

Sec.  4872,  R.S.  and  direction  of  the  court,  the  fee  simple  thereof  shall,  upon 
payment  to  the  owner  of  the  appraised  value,  or  in  case 
such  owner  refuses  or  neglects  for  thirty  days  after  the 
appraisement  of  the  cash  value  of  the  real  estate  or  im- 
provements as  aforesaid,  to  demand  the  same  from  the 
Secretary  of  War,  upon  depositing  the  appraised  value  in 
the  court  making  such  appraisement,  to  the  credit  of  such 
owner,  be  vested  in  the  United  States,  and  its  jurisdiction 
over  such  real  estate  shall  be  exclusive  and  the  same  as  its 
jurisdiction  over  real  estate  purchased,  ceded,  or  appropri- 
ated for  the  purposes  of  navy  yards,  forts,  and  arsenals. 
The  Secretary  of  War  is  authorized  and  required  to  pay  to 
the  several  owner  or  owners,  respectively,  the  appraised 
value  of  the  several  pieces  or  parcels  of  real  estate,  as  speci- 
fied in  the  appraisement  of  any  of  such  courts,  or  to  pay 
into  any  of  such  courts  by  deposit,  as  hereinbefore  pro- 
vided, the  appraised  value  ;  and  the  sum  necessary  for  such 
purpose  may  be  taken  from  any  moneys  appropriated  for 
the  purposes  of  national  cemeteries. 

SUPERINTENDED  TS. 

enfs^f'c'emete^     1863f  The  Secretary  of  War  shall  cause  to  be  erected  at 
iereb  22  1867  c  ^e  principal  entrance  of  each  national  cemetery  a  suit- 


4o68Jni  \L$it  a^e  buying  to  be  occupied  as  a  porter's  lodge;  and  shall 

c.  22c,  v.  19,  p.  99!  appoint  a  meritorious  and  trustworthy  superintendent  to 

'  reside  therein,  for  the  purpose  of  guarding  and  protecting 

the  cemetery  and  giving  information  to  parties  visiting  the 

same. 


selected  wsuper*     1864<  The   suPerillten(ients  of  tne  national   cemeteries 

inMadei8t8i872  c  sna^  ^e  selected  from  meritorious  and  trustworthy  soldiers, 

173,  s.  i,  v.  17,'  p.  either  commissioned  officers  or  enlisted  men  of  the  volunteer 

s'ec.  4874,  R.  s.  or  Eegular  Army,  Avho  have  been  honorably  mustered  out  or 

discharged  from  the  service  of  the  United  States,  and  who 

may  have  been  disabled  for  active  field  service  in  the  line 

of  duty. 

Salary  of  super-     1865.  The   superintendents  of  the  national  cemeteries 

intendents.  ,     ,-  _        ,  ,      .  .  .  .     J       ,    ... 

Sec.  4876,  R.S.  shall  receive  for  their  compensation  from  sixty  dollars  to 
seventy-five  dollars  a  month,  each,  according  to  the  extent 
and  importance  of  the  cemeteries  to  which  they  may  be 
respectively  assigned,  to  be  determined  by  the  Secretary  of 
War;  and  they  shall  also  be  furnished  with  quarters  and 
fuel  at  the  several  cemeteries. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


697 


INCLOSURES,  HEADSTONES,  AND   REGISTERS. 


1866.  In  the  arrangement  of  the 

established  for  the  burial  of  deceased  soldiers  and  sailors,  registers. 

' 


national  cemeteries,  inciosures, 

headstones,    and 


&*  48*^7,  B.S. 


the  Secretary  of  War  is  hereby  directed  to  have  the  same    June's,  18-72,  c 

inclosed  with  a  good  and  substantial  stone  or  iron  fence  5  Mark's,  iSfs,  c 

and  to  cause  each  grave  to  be  marked  with  a  small  head- 

stone  or  block,  which  shall  be  of  durable  stone,  and  of  such 

design  and  weight  as  shall  keep  it  in  place  when  set,  and 

shall  bear  the  name  of  the  soldier  and  the  name  of  his 

State  inscribed  thereon,  when  the  same  are  known,  and  also 

with  the  number  of  the  grave  inscribed   thereon,  corre- 

sponding with  the  number  opposite  to  the  name  of  the 

party  in  a  register  of  burials  to  be  kept  at  each  cemetery 

and  at  the  office  of  the  Quartermaster-  General,  which  shall 

set  forth  the  name,  rank,  company,  regiment,  and  date  of 

death  of  the  officer  or  soldier;  or  if  these  are  unknown,  it 

shall  be  so  recorded. 

1867.  That  the  Secretary  of  War  is  hereby  authorized  to 
erect  headstones  over  the  graves  of  soldiers  who  served  in 
the  Eegular  or  Volunteer  Army  of  the  United  States  dur-  2 
ing  the  war  for  the  Union,  and  who  have  been  buried  in 
private  village  or  city  cemeteries,  in  the  same  manner  as 
provided  by  the  law  of  March  third,  eighteen  hundred  and 
seventy-  three,  for  those  interred  in  national  military  ceme- 
teries; and  for  this  purpose,  and  for  the  expenses  incident 
to  such  work,  so  much  of  the  appropriation  of  one  million 
dollars,  made  in  the  act  above  mentioned,  as  has  not  been 
expended,  and  as  may  be  necessary,  is  hereby  made 
available. 

The  Secretary  of  War  shall  cause  to  be  preserved  in  the 
records  of  his  Department  the  names  and  places  of  burial 
of  all  soldiers  for  whom  such  headstones  shall  have  been 
erected  by  authority  of  this  or  any  former  acts.1  Act  of 
February  5,  1879  (20  Stat  L.,  281). 

INTERMENTS. 


1879>  v' 


Records. 


1868.  All  soldiers,  sailors,  or  marines,  dying  in  the  service 
of  the  United  States,  or  dying  in  a  destitute  condition  tionai 

"  tories. 

after  having  been  honorably  discharged  from  the  service,  juiy  17,  1862,  c. 
or  who  served  during  the  late  war,  either  in  the.  regular  or  5%  ;  juSeVi^ 
volunteer  forces,  may  be  buried  in  any  national  cemetery  Mar7'V7m3?°c.? 

__  :  _  276,  v.  17,  p.  605/ 

'Provision  for  carrying  this  statute  intoeffect  has  been  made  in  the  acts  of  appropri-  Sec'*87  8,  R.  S. 
ation  of  August  4,  1886  (24  Stat.  L.,  249),  March  3,  1887(24  Stat.  L.,  534),  October2,  1888 
(25  Stat.  L.,  539),  March  2,  1889  (25  Stat.  L.,  969),  August  30,  1890  (26  Stat.  L.,  400), 
March  3,  1891  (26  Stat.  L.,  973),  August  5,  1892  (27  Stat.  L.,  377),  March  3,  1893  (27 
Stat.  L.,  599),  August  18,  1894  (28  Stat.  L.,  405),  March  2,  1895  (28  Stat.  L.,  949),  and  June 
11,  1896  (29  Stat.  L.,  443). 


698  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

free  of  cost.     The  production  oi  the  honorable  discharge 
of  a  deceased  man  shall  be  sufficient  authority  for  the 
superintendent  of  any  cemetery  to  permit  the  interment. 
Bnriai  of  imii-     1869.  For  expenses  of  burying  in  the  Arlington  National 
Cemetery  or  in  the  cemeteries  of  the  District  of  Columbia, 
indigent  ex-  Union  soldiers,  sailors,  and  marines  of  the  late 
civil  war  who  die  in  the  District  of  Columbia,  to  be  dis- 
Limitation.      bursed  by  the  Secretary  of  War,  at  a  cost  not  exceeding 
fifty  dollars  for  such  burial  expenses  in  each  case,  exclusive 
of  cost  of  grave,  one  thousand  dollars;  and  the  appropria- 
tion made  by  the  sundry  civil  appropriation  acts  approved 
v.  25,  p.  538.      October  second,  eighteen  hundred  and  eighty-eight,  and 
v.  25,  p.  969.      March  second,  eighteen  hundred  and  eighty-nine,  for  the 
Former  appro-  expenses  of  burying  indigent  ex-  Union  soldiers,  is  hereby 
m   lemade  available  alike  for  all  survivors  of  the  Union  Army, 


26^>ufbi°'  189°'v>  ^vy,  and  Marine  Corps  of  eighteen  hundred  and  sixty-one 
to  eighteen  hundred  and  sixty-five,  dying  in  the  District 
of  Columbia  in  indigent  circumstances.1  Act  of  August  30, 
1890  (26  Stat.  L.,  401}. 

JURISDICTION,  CRIMINAL    OFFENSES. 

jurisdiction  of     1870.  From  the  time  any  State  legislature  shall  have 

United    States     . 

over  national  given,  or  shall  hereafter  give,  the  consent  of  such  State  to 

Juiyi,  1870,  c.  the  purchase  by  the  United  States  of  any  national  cerne- 

188*.  s'  P'  tery,  the  jurisdiction  and  power  of  legislation  of  the  United 

see.  4882,  B.S.  g^a^es  oyer  suc^  cemetery  shall  in  all  courts  and  places  be 

held  to  be  the  same  as  is  granted  by  section  eight,  article 

one,  of  the  Constitution  of  the  United  States;  and  all  pro- 

visions relating  to  national  cemeteries  shall  be  applicable 

to  the  same. 

facingal^aSonai     1871>  EveiT  person   who  willfully  destroys,  mutilates, 

C6Fei?22ei8e7  c  Defaces,  injures,  or  removes  any  monument,  gravestone,  or 

So  8'  3>  v'  14)'p'  °^er  structure,  or  who  willfully  destroys,  cuts,  breaks, 

s'ec.488i,R.s.  injures,  or  removes  any  tree,  shrub,  or  plant  within  the 

limits  of  any  national  cemetery,  shall  be  deemed  guilty 

of  a  misdemeanor,  punishable  by  a  fine  of  not  less  than 

twenty-five  dollars,  and  not  more  than  one  hundred,  or  by 

imprisonment  for  not  less  than  fifteen  days  and  not  more  than 

sixty.    The  superintendent  in  charge  of  any  national  cem- 

etery is  authorized  to  arrest  forthwith  any  person  engaged 

in  committing  any  misdemeanor  herein  prohibited,  and  to 

bring  such  person  before  any  United  States  commissioner 

or  judge  of  any  district  or  circuit  court  of  the  United  States 

within  any  State  or  district  where  any  of  the  cemeteries  are 


1  A  similar  provision  occurs  in  tlie  annual  acts  of  appropriation  since  that  of  March 
2,1889  (25Stat.  L.,409). 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  699 

situated,  for  the  purpose  of  holding  such  person  to  answer 
for  such  misdemeanor,  and  then  and  there  shall  make  com- 
plaint in  due  form. 


UNITED   STATES   CEMETERY  NEAR   THE   CITY  OF   MEXICO. 


' 


1872.  The  President  is  authorized  to  provide,  out  of  the  thciy 
ordinary  annual  appropriations,  for  establishing  and  main-  ic^ar  3  1873  c 
taining  United  States  military  cemeteries,  for  the  proper  26^.n^eo2^ 
care  and  preservation  arid  maintenance  of  the  cemetery  or 

burial  ground  near  the  City  of  Mexico,  in  which  are 
interred  the  remains  of  officers  and  soldiers  of  the  United 
States,  and  of  citizens  of  the  United  States,  who  fell  in 
battle,  or  died  in  and  around  said  city. 

1873.  The  cemetery  in  Mexico  shall  be  subject  to  thetoTwhaet  reg'K- 
rules  and  regulations  affecting  United  States  national  mili-tlg£5;'488o%.s. 
tary  cemeteries  within  the  limits  of  the  United  States,  so 

far  as  they  may,  in  the  opinion  of  the  President,  be  appli- 
cable thereto. 

ENCROACHMENT  BY  RAILROADS,  ETC. 

1874.  That  no  railroad  shall  be   permitted   upon   the^gSSSfSi 
right  of  way  which  may  have  been  acquired  by  the  United  b  ijJJJ*^  i891)  v. 
States  to  a  national  cemetery,  or  to  encroach  upon  any28'?-949- 
roads  or  walks  constructed  thereon  and  maintained  by  the 

United  States.     Act  of  March  2,  1895  (28  Stat.  L.,  949.)1 

l~By  separate  statutes  provision  has  been  made  for  the  construction  of  roads  and 
other  approaches  as  follows:  Act  of  January  20,  1878  (20  Stat.  L.,242),  and  March  3, 

1881  (21  Stat.  L.,  447),  at  Vicksburg,  Miss.  ;  March  3,  1881  (21  Stat,  L.,  445),  August  7, 

1882  (22  Stat.  L.,  319),  March  3,  1883  (22  Stat.  L.,  617),  and  Jxily  7,  1884  (23  Stat.  L.,  219), 
at  Chattanooga,  Tenn.;  March  3,  1881  (21  Stat.  L.,  447),  August  7,  1882  (22  Stat.  L., 
150),  and  July  7,  1884  (22  Stat.  L.,319),  at  Fort  Scott,  Kans.;  July  3,  1882  (22  Stat.L., 
150),  and  March  3,  1891  (26  Stat.  L.,  978),  at  Mound  City,  111.  ;  March  3,  1883  (22  Stat. 
L.,  617),  July  2,  1886,  chapter  610  (24  Stat.  L.,  121),  at  Chalmette,  La.  ;  March  3,  1885 
(23  Stat  L.,  507),  October  2,  1888  (25  Stat.  L.,  539),  and  August  30,  1890  (26  Stat.  L.,  401), 
at  Marietta,  Ga.  ;  March  3,  1885  (23  Stat.  L.,  507),  at  Baton  Rouge,  La.  ;  August  4,  1880 
(24  Stat.  L.,  249),  and  October  2,  1888  (25  Stat.  L.,  539),  at  Springfield,  Mo.;  July  2, 
1886(24  Stat.L.  ,121),  at  Natchez,  Miss.;  July  28,  1886  (24Stat.  L,  159),  at  Knoxville, 
Tenn  •  February  23,  1887  (24  Stat.  L.,  416),  and  March  2,  1889  (25  Stat.  L..  969),  at  Dan- 
ville Va.  ;  February  28,  1887  (24  Stat.  L.,  431),  at  Richmond,  Va.  ;  October  2,  1888  (25 
Stat,  L.,  539),  March  2,  1889,  chapter  416  (25  Stat.  L.,  915),  August  30,  1890  (26  Stat.  L., 
401)   at  Antietani,  Md.;  August  30,  1890  (26  Stat.  L.,  401),  at  Hampton.  Va.  ;  March 
2,  1889  (25  Stat.  L.,  969),  at  Beverly,  N.  J.;  January  8,  1889  (25  Stat.  L.,  641),  at  Flor- 
ence S  C.-  August  30,  1890  (26  Stat.  L.,401),  roads  at  Culpeper  and  Fredcricksburg-, 
Va.,  and  a  levee  at  Brownsville,  Tex.;  May  14,  1890  (26  Stat.  L.,  108),  at  Port  Hud- 
son La  •  April  9,  1890  (26  Stat.L.,  46),  at  Staunton,  Va.;  March  3,  1891  (26  Stat.L., 
978)   An«ust5,  1892  (27  Stat.  L.,  377),  March  3,  1893  (27  Stat.  L.,  599).  August  18,1894, 
(28  Stat.  L.,  405),  March  2,  1895  (28  Stat.  L.,  909),  at  the  Presidio  of  San  Francisco, 
Cal.  ;  December  11,  1890  (26  Stat.  L.,  687),  at  Alexandria,  Va.     The  title  and  possession 
of  the  United  States  to  and  of  land  situate  at  El  Paso,  Tex.,  duly  purchased  for  cem- 
etery purposes,  would  properly  be  protected  against  a  continuous  trespass  on  the 
part  of  the  municipality  in  cutting  a  street  through  the  laud,  by  an  injunction  sued 
out  in  the  proper  court,  the  remedy  by  suit  for  damages  being  inadequate,  (a)     (Dig. 
J.  A.  Gen.  ,631,  par.  17.) 


ol  Pomeroy,  Eq.  Jur.,  sec.  138;  3  ibid.,  sees.  1347, 1356. 


CHAPTER 


FLAG  AND  SEAL  OF  THE  UNITED  STATES. 


Par. 

1875.  The  flag  to  be  13  stripes  and 

37  stars. 

1876.  A  star  to  be  added  for  every 

new  State. 


Par. 

1877.  Seal  of  the  United  States. 

1878.  Secretary  of  State  to  keep 

and  use  the  seal. 


The  flag  to  be 
13  stripes  and  37 
stars. 

Jan.  13,  1794,  c. 
l,v.l.p.841;Apr. 
4,  1818,  c.  34,  s.  1, 

A  star  to  be 
added  for  every 
new  State. 

Apr.  4,  1818,  c. 
34,  s.  2,  v.  3,  p.  415. 

Sec.  1792,  U.S. 


Seal  of  the 
United  States. 

Sept,  15, 1789,  c. 
14,  s.  3,  v.l.  p.  68. 

Sec.  1793,  R.S. 


1875.  The  flag  of  the  United  States  shall  be  thirteen 
horizontal  stripes,  alternate  red  and  white;  and  the  union 
of  the  flag  shall  be  [forty-five]  stars,  white  in  a  blue  field. 

v.  3,  p.  415.    Sec.  1791,  R.S. 

1876.  On  the  admission  of  a  new  State  into  the  Union 
one  star  shall  be  added  to  the  union  of  the  flag;  and  such 
addition  shall  take  effect  on  the  fourth  day  of  July  then 
next  succeding  such  admission.1 

1877.  The  seal  heretofore  used  by  the  United  States  in 
Congress  assembled  is  declared  to  be  the  seal  of  the  United 
States. 

1  The  Union  of  the  flag  now  contains  forty-five  stars,  arranged  in  accordance  with 
the  following  order : 

WAR  DEPARTMENT,  Washington,  March  17,  1896. 

The  field  or  union  of  the  national  flag  in  use  in  the  Army  will  on  and  after  July 
4,  1896,  consist  of  forty-five  stars,  in  six  rows,  the  first,  third,  and  fifth  rows  1o  have 
eight  stars,  and  the  second,  fourth,  and  sixth  rows  seven  stars  each,  in  a  blue  field, 
arranged  as  follows: 


******** 
******* 

******** 
******* 

******** 
******* 


DANIEL  S.  LAMONT, 

Secretary  of  War. 


700 


Held  that  there  w.as  no  law  precluding  an  alien  residing  in  the  United  States,  the 
subject  of  a  foreign  government  with  which  we  are  at  peace,  from  displaying  the 
flag  of  his  country  on  his  dwelling.  (Dig.  J.  A.  Gen.,  148  par.  4.) 


THE    MILITARY    LAWS   OP    THE    UNITED    STATES.  701 


1878.  The  Secretary  of  State  shall  keep  such  seal,  and 
shall  make  out  and  record,  and  shall  affix  the  same  to.  all 

Sept.  15,  1789,  c. 

civil  commissions  for  officers  of  the  United  States,  to  ke^s-^j.i,  p.68; 
appointed  by  the  President,  by  and  with  the  advice  and  57,  v.  is,  p/23J 
consent  of  the  Senate,  or  by  the  President  alone.  But  the  131,  s.  14,  v.  is,  p! 
seal  shall  not  be  affixed  to  any  commission  before  the  same  Marbury  v. 
has  been  signed  by  the  President  of  the  United  States,  nor^8.dison>  1  Or" 
to  any  other  instrument,  without  the  special  warrant  of  the  8ec*  1794»B-  s- 
President  therefor. 


THE  ARTICLES  OF  WAK.' 


Section. 

1342.  Articles  of  war. 

Article. 

1.  Officers  shall  subscribe  these 

articles. 

2.  Articles  to  be  read  to  recruits. 


Article. 


3.  Officers  making  unlawful  en- 

listments. 

4.  Discharges. 

5.  Mustering  persons  not  soldiers. 

6.  Taking  money  on  mustering. 


'HISTORICAL  NOTE. 

In  the  early  periods  of  English  history  military  law  existed  only  in  time  of  actual 
war.  When  war  broke  out  troops  were  raised  as  occasion  required,  and  ordinances 
for  their  government,  or,  as  they  were  afterwards  called,  Articles  of  War,  were  issued 
by  the  Crown,  with  the  advice  of  the  constable  or  of  the  peers  or  other  experienced 
persons,  or  were  enacted  by  the  commander  in  chief  in  pursuance  of  an  authority 
for  that  purpose  given  in  his  commission  from  thr>  Crown,  (a) 

These  ordinances  or  articles,  however,  remained  in  force  only  during  the  service 
of  the  troops  for  whose  government  they  wore  issued,  and  ceased  to  operate  on  the 
conclusion  of  peace.  Military  law,  in  time  of  peace,  did  not  come  into  existence 
until  the  passing  of  the  first  mutiny  act  in  1689. 

The  system  of  governing  troops  in  active  service  by  articles  of  war,  issued  under 
the  prerogative  power  of  the  Crown,  whether  issued  by  the  King  himself,  or  by  the 
commanders  in  chief,  or  by  other  officers  holding  commissions  from  the  Crov.  u,  con- 
tinued from  the  time  of  the  Conquest  till  long  after  1  ho  passing  of  the  annual  mutiny 
acts,  (b)  and  did  not  actually  cease  till  the  prerogative  power  of  issuing  such  articles 
was  superseded  in  1803  by  a  corresponding  statutory  power,  (c) 

The  earlier  articles  were  of  excessive  severity,  inflicting  death  or  loss  of  limb  for 
almost  every  crime.  Gradually,  however,  they  assumed  something  of  the  shape 
which  they  bear  in  modern  times,  and  the  Ordinances  or  Articles  of  War  issued  by 
Charles  I  in  1672  formed  the  ground  work  of  the  Articles  of  War  of  1878,  which  were 
consolidated  with  the  mutiny  act  in  the  army  discipline  and  regulation  act  of  1879; 
which  was  replaced  by  the  ai  my  act  of  1881 .  The  army  act  of  1881,  which  now  con 
stitutes  the  military  code  of  the  British  army,  has  of  itself  no  force,  but  requires  to 
be  brought  into  operation  annually  by  another  act  of  Parliament,  thus  securing  the 
constitutional  principle  of  the  control  of  the  Parliament  over  the  discipline  requisite 
for  the  government  of  the  army,  (d) 

The  Rules  and  Articles  of  War  were  derived  originally  from  the  English  mutiny 
act  and  articles  of  war  under  the  following  circumstances:  In  May.  1775,  the  Conti- 
nental Congress  met  in  Philadelphia  and  at  once  proceeded  to  levy  and  organize  an 
army.  A  system  of  rules  for  its  government  was,  of  course,  indispensable..  The 
members  of  this  Congress  were  naturally  familiar  with  the  English  military  code. 
The  local  troops  serving  with  the  English  forces  sent  to  this  country  in  1754  had 
been  brought  under  the  mutiny  act,  while  the  armies  of  Gage  and  Efurgoyue  were 
governed  by  the  English  code  at  the  time  tho  first ' '  Continental  troops  ' '  were  raised. 
It  was  but  natural,  therefore,  that  this  body  should  turn  to  the  mutiny  act  as  a 
model,  and  on  June  30, 1775,  the  Congress  promulgated  articles,  sixty  nine  in  number, 
for  the  government  of  the  Continental  troops.  These  articles  were  adopted  from  the 
English,  in  the  same  form  as  our  present  articles,  modified,  however,  to  meet  the 
milder  views  wnich  were  entertained  by  a  people  who  entertained  an  objection  to  a 
:ere  made  'in  November  of  this  year  but  were  repealed 
776,  and  new  articles  adopted.  These  articles,  one  hun- 


standing  army.  Additions  were  made  in  November  of  this  year  but  were  repealed 
by  tho  act  of  September  30, 1776,  and  new  articles  adopted.  These  articles,  one  hun- 
dred and  two  in  number,  were  modeled  upon  tho  British  form  and  were  arranged  in 
eighteen  sections.  With  some  modifications  they  remained  in  force  until  180G. 

In  September,  1789,  they  were  formally  recognized  and  adapted  to  tho  new  Consti- 
tution b.v  tho  First  Congress  of  the  United  States.  In  1806  the  articles,  one  hundred 
and  one  in  number,  were  rearranged  and  promulgated  by  Congress;  (e)  the  divisions 
into  sections  were  dropped  and  the  old  model  substituted.  These,  with  live  or  six 
modifications,  remained  in  force  for  nearly  seventy  years,  and  were  the  governing 
code  of  the  Army  until  the  passage  of  the  act  of  Jiiiie  22,  ]874(/)  (18  Stat.  L.,  113). 
These  articles  are  embodied  in  the  Revised  Statutes  as  sections  1342  and  1343  of  that 
work. 

a  Grose,  Military  Antiquities,  vol.  2,  p.  58. 
b  Barwis  v.  Keppel,  ^  Wilson's  Hep.,  314. 
c43  Geo.  Ill,  chapter  20. 

d  Manual  of  Military  Law,  War  Office,  Pall  Mall,  1884,  pp.  9-18. 
e  Act  of  April  10,  1806  (2  Stat.  L.,  p.  359). 
/Ives,  Mil.  Law,  p.  17. 
702 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


703 


Article, 

7.  Returns  of  regiments,  etc. 

8.  False  returns. 

9.  Captured    stores   secured    for 

public  service. 

10.  Accountability  for  arms,  etc. 

11.  Furloughs. 

12.  Musters. 

13.  False  certificates. 

14.  False  muster. 

15.  Allowing  military  stores  to  bo 

damaged. 

16.  Wasting  ammunition. 

17.  Losing     or     spoiling    horses, 

accoutermonts,  etc. 

18.  Commanders  not  to  bo  inter- 

ested in  sale  of  victuals,  etc. 

19.  Disrespectful    words    against 

the  President,  etc. 

20.  Disrespect  toward  command- 

ing officer. 

21.  Striking  a  superior  officer. 

22.  Mutiny. 

23.  Failing  to  resist  mutiny. 

24.  Quarrels  and  frays. 

25.  Reproachful   or   p  r  o  v  o  k  i  n  g 

speeches. 

26.  Challenges  to  fight  duels. 

27.  Allowing  persons  to  go  out 

and  fight;  seconds  and  pro- 
moters. 

28.  Upbraiding  another  for  refus- 

ing challenge. 

29.  Wrongs  to  officers,  redress  of. 

30.  Wrongs  to  soldiers,  redress  of. 

31.  Lying  out  of  quarters. 

32.  Soldiers  absent  without  leave. 

33.  Absence  from  parade  without 

leave. 

34.  One  mile  from  camp  without 

leave. 

35.  Failing  to  retire  at  retreat. 

36.  Hiring  duty. 

37.  Conniving  at  hiring  duty. 

38.  Drunk  on  duty. 

39.  Sentinel  sleeping  on  post. 

40.  Quitting  guard,  etc.,  without 

leave. 

41.  False  alarms. 

42.  Misbehavior  before  the  enemy, 

cowardice,  etc. 

43.  Compelling  a  surrender. 

44.  Disclosing  watchword. 

45.  Relieving  the  enemy. 

46.  Corresponding  with   the 

enemy. 


Article. 

47.  Desertion. 

48.  Deserter  shall  serve  full  term. 
'19.  Desertion  by  resignation. 

50.  Enlisting  in  other    regiment 

without  discharge. 

51.  Advising  to  desert. 

52.  Misconduct  at  divine  service. 

53.  Profane  oaths. 

54.  Officers  to  keep  good  order  in 

their  commands. 

55.  Waste  or  spoil  and  destruction 

of  property  without  orders. 

56.  Violence  to  persons   bringing 

provisions. 

57.  Forcing  a  safeguard. 

58.  Certain   crimes  during   rebel- 

lion. 

59.  Offenders  to  be  delivered  up  to 

civil  magistrates. 

60.  Certain  crimes  of  fraud  against 

the  United  States. 

61.  Conduct  unbecoming  an  officer 

and  gentleman. 

62.  Crimes  and  disorders  to  preju- 

dice of  militaiy  discipline. 

63.  Retainers  of  camp. 

64.  All  troops  subject  to  Articles 

of  War. 

65.  Arrest  of  officers   accused  of 

crimes. 

66.  Soldiers  accused  of  crimes. 

67.  Receiving  prisoners. 

68.  Report  of  prisoners. 

69.  Releasing     prisoner    without 

authority;  escapes. 
70    Duration  of  confinement. 

71.  Copy  of  charges  and  time  of 

trial. 

72.  Who     may    appoint     general 

courts-martial. 

73.  Commanders  of  divisions  and 

separate  brigades  may  ap- 
point in  time  of  war. 

74.  Judge-advocate. 

75.  Members    of   general   courts- 

martial. 

76.  When  requisite    number    not 

at  a  post. 

77.  Regular    officers,    on    what 

courts  may  sit. 

78.  Marine  and  Regular  Army  offi- 

cers associated  on  courts. 

79.  Officers    triable     by    general 

courts-martial. 

80.  Field  officers'  courts. 


704 


THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 


Article. 

81.  Regimental  courts. 

82.  Garrison  courts. 

83.  Jurisdiction  of  field  officers', 

regimental,    and   garrison 
courts. 

84.  Oath  of  members  of  courts- 

martial. 

85.  Oath  of  judge-advocate. 

86.  Contempts  of  court. 

87.  Behavior  of  members. 

88.  Challenges  by  prisoner. 

89.  Prisoner  standing  mute. 

90.  Judge-advocate,  prosecutor 

and  counsel  for  prisoner. 

91.  Depositions. 

92.  Oath  of  witness. 

93.  Continuances. 

94.  Hours  of  sitting. 

95.  Order  of  voting. 

96.  Sentence  of  death. 

97.  Pententiaries. 

98.  Flogging. 

99.  Discharge  and  dismissal    of 

officers. 

100.  Publication  of  officers  cash- 

iered   for    cowardice   or 
fraud. 

101.  Suspension  of  officers'  pay. 

102.  No    person    tried  twice    for 

same,  etc. 

103.  Limitation  of  time  of  prose- 

cution. 

104.  Approval  of  sentence  by  offi- 

cer ordering  court. 

105.  Confirmation  of   death    sen- 

tence. 

106.  Confirmation  of  dismissals  in 

time  of  peace. 

107.  Dismissal   by  division    or 

brigade  courts. 

108.  General  officers,  sentences 

respecting. 


Article. 

109.  Confirmation  by  officer  order- 

ing court. 

110.  Confirmation  of  field  officers' 

sentences. 

111.  Suspension  of  sentence   of 

death  or  dismissal. 

112.  Pardon   and  mitigation  of 

sentences. 

113.  Proceedings   forwarded  to 

Judge- Advocate-General. 

114.  Party  entitled  to  a  copy. 

115.  Courts   of   inquiry,  how   or- 

dered . 

116.  Members  of  court  of  inquiry. 

117.  Oaths  of   members    and    re- 

corder of  court  of  inquiry. 

118.  Witnesses    before    courts    of 

inquiry. 

119.  Opinion;  when  given  by. 

120.  Authentication    of    proceed- 

ings of  court  of  inquiry. 

121.  Proceedings  of  court   of  in- 

quiry used  as  evidence. 

122.  Command  when   different 

corps  happen  to  join. 

123.  Regular  and  volunteer  officers 

on  same  footing  as  to  rank, 
etc. 

124.  Rank    of   militia   officers  on 

duty  with  officer  of  regular 
or  volunteer  forces. 

125.  Deceased  officers'  effects. 

126.  Deceased  soldiers'  effects. 

127.  Effects  of   deceased    officers 

and  soldiers  to  be  accounted 
for. 

128.  Articles  of  War  to  be  pub- 

lished once  in  six  months  to 
every  regiment,  etc. 

Section. 

1343.  Spies. 


SECTION  1342.  The  armies  of  the  United  States  shall  be 
pusnecShi342tB  s  governe(l  bv  the  following  rules  and  articles.     The  word 
2o1pi  10359OG'2'Sofficer' as  used  tnerein?  sna11  be  understood  to  designate 
Sept.,  isw,  v'.  26,  commissioned  officers;  the  word  soldier  shall  be  understood 
to  include  n on  commissioned  officers,  musicians,  artificers, 
and  privates,  and  other  enlisted  men,  and  the  convictions 
mentioned  therein  shall  be  understood  to  be  convictions  by 
court-martial.     Sec.  1342,  R.  8. 

That  whenever  by  any  of  the  Articles  of  War  for  the 
government  of  the  Army  the  punishment  on  conviction  of 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      705 

any  military  offense  is  left  to  the  discretion  of  the  court- 
martial,  the  punishment  therefor  shall  not,  in  time  of  peace, 
be  in  excess  of  a  limit  which  the  President  may  prescribe.1 
Act  of  September  27,  1890  (26  Stat.  £.,  491). 

ARTICLE  1.  Every  officer  now  in  the  Army  of  the  United  ^Sbo  8these 
States  shall  within  six  months  from  the  passing  of  this  act,  "fjfjf.'  War. 
and  every  officer  hereafter  appointed  shall  before  he  enters 
upon  the  duties  of  his  office,  subscribe  these  rules  and 
articles. 

ART.  2.  These  rules  and  articles  shall  be  read  to  every 
enlisted  man  at  the  time  of,  or  within  six  days  after,  his 
enlistment,  and  he  shall  thereupon  take  an  oath  or  affirma-16^8-  sy.  2, 
tion,  in  the  following*  form  :  "  I,  A.  B.,  do  solemnly  swear  (or  c.  42,  s.  11,  V.  12,' 
affirm)  that  I  will  bear  true  faith  and  allegiance  to  the  P'  3  Art.  war. 
United  States  of  America  5  that  I  will  serve  them  honestly 
and  faithfully  against  all  their  enemies  whomsoever:  and 
that  I  will  obey  the  orders  of  the  President  of  the  United 
States,  a*ud  the  orders  of  the  officers  appointed  over  me, 
according  to  the  rules  and  articles  of  war."    This  oath  may 
be  taken  before  any  commissioned  officer  of  the  Army.2 

ART.  3.  Every  officer  who  knowingly  enlists  or  musters  .  officers  mak- 

ing unlawful  en- 

into  the  military  service  any  minor  over  the  age  of  sixteen  Hstments. 
years  without  the  written  consent  of  his  parents  or  guard-    Mar.  5,  isss.c. 

.  .  68,s.6,v.4,p.647; 

ians,  or  any  minor  under  the  age  01  sixteen  years,  or  any  Mar.  3,1863,0.75, 
insane  or  intoxicated  persons,  or  any  deserter  from  thej'uiyV'4,  1864,  c! 
military  or  naval  service  of  the  United  States,  or  any  p^'slo^Mar/a, 
person  who  has  been  convicted  of  any  infamous  criminal  y8  il,  p.  47996;skiy 
offense,  shall,  upon  conviction,  be  dismissed  from  the  serv-  2%™7%?ii7?'  8' 
ice,  or  suffer  such  other  punishment  as  a  court-martial 
may  direct.3 

1  Under  the  authority  conferred  by  this  statute  two  executive  orders  have  been 
issued  prescribing  limits  of  punishment  for  offenses  to  which  specific  penalties  are  not 
attached  in  the  Articles  of  War.    See  G.  O.  No.  21,  A.  G.  O.,  of  1891,  as  modified  by  the 
executive  order  of  March  20,  1895  (MANUAL  FOR  COURTS-MARTIAL,  pp.  59-63). 

2  The  taking  of  the  oath  prescribed  by  this  article  is  not  an  essential  to  the  valid- 
ity of  an  enlistment.    It  is,  however,  an  almost  invariable  part  of  a  regular  formal 
enlistment,  and,  in  the  absence  of  any  provision  in  our  law  defining  in  what  an  en- 
listment shall  consist,  it  is  important  that  it  should  not  be  omitted,  for  the  reason 
that  the  oath  as  taken  and  subscribed  by  the  party  constitutes  the  regular,  and,  in 
some  cases,  the  only,  legal  written  evidence  that  the  personal  act  of  enlisting  has 
been  completed  by  him.     (Dig.  J.  A.  Gen.,  19,  par.  1.)    But  see  Grimley's  case  (137 
U.  S.,  147),  in  which  it  was  held  that  the  oath  ot  allegiance  was  the  pivotal  fact  which 
changed  the  status  from  that  of  civilian  to  soldier.    Section  11  of  the  act  of  August 
3,  18(51  (12  Stat.  L.,  289),  conferred  authority  to  administer  the  oath  of  allegiance  upon 
any  commissioned  officer  of  the  Army. 

The  statement  in  regard  to  age,  incorporated  in  the  printed  blank  which  contains 
the  form  of  oath  prescribed  by  this  article,  is  no  part  whatever  of  the  legal  oath. 
(Ibid.,  par.  2.) 

•Neither  this  article,  nor  the  directory  provision  in  pari  materia  of  sections  1117- 
1118,  Eevised  Statutes,  renders  void  enlistments  of  the  classes  of  persons  whose  en- 
listment or  muster-  in  ia  made  punishable  and  interdicted.  Except,  of  course,  in  the 
case  of  an  enlistment  of  a  person  clearly  non  compos  mentis,  and  whose  contract  is  a 
nullity  in  law  independently  of  any  statute,  these  enlistments  are  voidable  only  ;  the 
United  States  may  hold  the  party  to  service,  or  may  discharge  him  forthwith  'in  the 
manner  authorized  by  the  fourth  article.  (Ibid.,  20,  par.  1.) 

It  is  not  essential  to  a  conviction  under  this  article  that  the  officer  shall  be  shown 
to  have  had  positive  and  absolute  knowledge  that  the  person  enlisted  by  him  be- 
longed to  one  of  the  classes  of  persons  whose  enlistment  is  made  an  offense.  If  he 

.     1919  -  45 


706  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

Discharges.  ART.  4.  No  enlisted  man,  duly  sworn,  shall  be  discharged 
from  the  service  without  a  discharge  in  writing,  signed  by 
a  field-officer  of  the  regiment  to  which  he  belongs,  or  by  the 
commanding  officer,  when  no  field-officer  is  present;  and  no 
discharge  shall  be  given  to  an  enlisted  man  before  his  term 
of  service  has  expired,  except  by  order  of  the  President, 
the  Secretary  of  War,  the  commanding  officer  of  a  depart- 
ment, or  by  sentence  of  a  general  court-martial.1 

had  such  knowledge  or  information  as  to  place  the  fact  beyond  a  reasonable  doubt 
he  may  properly  be  deemed  to  have  acted  "knowingly."  (Ibid.,  par.  2.) 

The  enlistment  of  a  party  who  was  evidently  so  much  under  the  influence  of  liquor 
as  to  make  it  doubtful  whether  he  comprehended  the  legal  effect  of  his  acts,  held  an 
enlistment  of  an  "intoxicated  person"  and  an  offense  under  this  article.  (Ibid., 
par.  3.) 

1  While  no  soldier  can  assume  to  discharge  himself  from  the  military  service,  he 
is  yet,  at  the  expiration  of  his  contract  of  enlistment,  entitled  in  general  to  be  at 
once  formally  discharged  by  the  proper  authority,  (a)  In  view,  however,  of  the 
terms  of  the  first  clause  of  this  article,  held  that  a  discharge  of  a  soldier  actually 
takes  effect,  like  a  deed,  only  upon  the  delivery,  actual  or  constructive,  of  the  writ- 
ten certificate  of  discharge.  Thus,  where  a  soldier's  discharge  was  not  received  by 
him  at  his  station— a  hospital  in  the  field— till  at  the  end  of  three  months  after  its 
date,  held  that  it  did  not  take  effect  till  its  receipt,  and  that  the  soldier  was  entitled 
to  pay  up  to  that  time.  (Dig.  Opin.  J.  A.  Gen.,  20,  par.  1.) 

Where  an  honorable  discharge  has  onco  duly  taken  effect  by  tbe  delivery  of  the 
formal  certificate  (see  article  4,  section  1)  it  is  final  and  can  not  be  revoked  unless 
obtained  by  fraud,  (b)  But  in  such  a  case  the  revocation  should  be  made  within  a 
reasonable  time,  otherwise  the  Government  will  be  deemed  to  have  waived  the 
defect.  A  mere  order  for  a  discharge  may  of  course  be  recalled  or  suspended  at  any 
time  before  it  is  executed  by  the  delivery  of  the  discharge  ordered.  Where  an  officer 
of  volunteers  had  been  duly  mustered  out  of  service — a  form  of  honorable  discharge — 
and  was  thus  a  civilian,  held  that  a  revocation  in  orders  of  his  muster  out,  and  a 
substitution  therefor  of  a  dishonorable  discharge,  would — in  the  absence  of  any 
fraud  in  the  case — be  wholly  unauthorized  and  illegal.  (Ibid.,  355,  par.  1.) 

Where  a  soldier,  by  making  an  alteration  in  his  "descriptive  list,"  so  as  to  cause 
it  to  appear  that  his  term  of  enlistment,  which  was  in  tact  five  years,  was  three 
years  only,  induced  the  regimental  commander  to  give  him  an  honorable  discharge 
at  the  end  of  three  years  service,  held,  upon  the  fraud  being  presently  discovered, 
that  the  discharge  might  legally  be  revoked  and  the  soldier  be  brought  to  trial  by 
court-martial  under  the  ninety-ninth  (now  sixty-second)  article  of  war.  But  where, 
by  competent  authority,  according  to  the  present  fourth  article,  an  honorable  dis- 
charge was  given  to  a  soldier  who  was  at  the  time  in  arrest  under  charges,  held  that 
such  discharge— no  fraud  being  imputable  to  the  soldier— was  final,  and  could  not 
legally  be  revoked.  (Ibid.,  par.  2.) 

The  fact  that  a  soldier  Has  been  a  deserter  does  not  affix  an  irreparable  taint  upon 
his  status  or  service  when  returned  from  desertion,  or  preclude  his  receiving  an 
honorable  discharge,  if  either  he  be  restored  to  duty  without  trial,  or  having  been 
tried  and  sentenced,  ho  yet,  by  reason  of  his  imprisonment  being  fully  executed  or 
being  remitted  before  the  end  of  his  term,  is  returned  to  duty  and  is  in  the  perform- 
ance of  faithful  service  when  his  term  is  completed.  A  discharge  in  the  usual  form 
then  given  to  him  is  an  authoritative  declaration  by  it  that  he  leaves  tbe  mili- 
tary service  in  a  status  of  honor.  Thus  honorably  discharged  he  can  not,  by  reason 
of  his  having  formerly  deserted,  be  deprived  of  any  rights  to  pay,  allowances,  or 
bounty  usually  incident  upon  honorable  discharge,  (c)  ( Ibid.,  356,  par.  4.) 

A  formal  discharge,  given  to  a  soldier  in  accordance  with  this  article,  is  legal  evi- 
dence of  the  fact  of  discharge,  as  well  as  of  the  circumstances — when  the  same  are 
stated— under  which  the  soldier  was  separated  from  the  service,  (d)  (Ibid.,  21,  par.  2.) 

This  article,  in  its  second  clause,  specifies  two  kinds  of  discharge  as  authorized  to  be 
given  to  soldiers  before  their  terms  of  enlistment  have  expired  and  which  are  quite 
distinct  in  their  nature.  The  one  is  given  by  Executive  order  and  the  other  by  sen- 
tence; the  one  is  a  rescinding  of  the  contract  of  the  soldier,  authorized  to  be  resorted 
to  whenever  deemed  desirable,  at  the  discretion  of  the  Secretary  of  War,  etc.,  and  is, 
in  law,  an  honorable  discharge  or  a  discharge  without  honor,  as  the  case  may  be ;  the 
other  is  a  punishment,  and  therefore  a  dishonorable  discharge.  One  of  the  officials 
named  can,  of  ftis  own  authority,  no  more  order  a  soldier  to  be,  in  terms  technically, 
dishonorably  discharged  than  can  a  court-martial  adjudge  a  soldier  to  be  honorably 
discharged.  A  discharge  can  not  legally  be  given  a  soldier  before  the  expiration  of 
his  term  of  service  except  as  authorized  "in  this  article;  and  no  officer,  other  than  the 
three  designated,  can  exercise  the  authority,  expressly  devolved  upon  them,  of  dis- 
charging by  order,  (e)  (Ibid.,  par.  3.) 

a  See  Justice  Story's  charge  to  the  jury  in  United  States  v.  Travers,  2  Wheeler  Cr. 
C.,  509;  also  Prendergast,  42. 

fcSee  opinion  of  the  Attorney-General,  in  16  Opins.,  352,  in  which  it  was  held  that 
an  honorable  discharge  obtained  by  gross  falsehood  and  fraud  was  revocable  by  the 
Secretary  of  War. 

cSee  United  States  v.  Kelly,  15  Wallace,  36. 

dSee  Board  of  Commissioners  v.  Mertz,  27  Ind.,  10:5;  Hanson  v.  S.  Scituate,  115 
Mass.,  336;  U.  S.  v.  Wright,  5  Philad.,  296. 

e30pin,Att.Gen.,353. 


iTHE    MILITARY    LAWS    OF    THE    UNITED    STATES.  707 

ART.  5.  Any  officer  who  knowingly  musters  as  a  soldier  a    Musteline  per- 

J  to  J  sons  not  soldiers. 

person  who  is  not  a  soldier  shall  be  deemed  guilty  of  know-    5  Art-  war. 
ingly  making  a  false  muster,  and  punished  accordingly. 

ART.  6.  Any  officer  who  takes  money,  or  other  thing,  by 
way  of  gratification,  on  mustering  any  regiment,  troop,  ° Artt 
battery  or  company,  or  on  signing  muster-rolls,  shall  be 
dismissed  from  the  service,  and  shall  thereby  be  disabled 
to  hold  any  office  or  employment  in  the  service  of  the  United 
States. 

ART.  7.  Every  officer  commanding  a  regiment,  an  inde-  re5,aents?eto.  °f 
pendent  troop,  battery,  or  company,  or  a  garrison,  shall,  in    7  Art*  Wan 
the  beginning  of  every  month,  transmit  through  the  proper 
channels,  to  the  Department  of  War,  an  exact  return  of 
the  same,  specifying  the  names  of  the  officers  then  absent 
from  their  posts,  with  the  reasons  for  and  the  time  of  their 
absence.     And  any  officer  who,  through  neglect  or  design, 
omits  to  send  such  returns,  shall,  on  conviction  thereof,  be 
punished  as  a  court-martial  may  direct. 

ART.  8.  Every  officer  who  knowingly  makes  a  false  return  f  Art.  Wanns' 
to  the  Department  of  War,  or  to  any  of  his  superior  officers, 
authorized  to  call  for  such  returns,  of  the  state  of  the  regi- 
ment, troop  or  company,  or  garrison  under  his  command ; 
or  of  the  arms,  ammunition,  clothing  or  other  stores  there- 
unto belonging,  shall,  on  conviction  thereof  before  a  court- 
martial,  be  cashiered.1 

ART.  9.  All  public  stores  taken  from  the  enemy  shall  be  captured  stores 

n  j_i  •  /.  j.i        FT     -^_     i    n^  secured  for  pub- 

secured  for  the  service  of  the  United  States;  and  for  neg- lie  service, 
lect  thereof  the  commanding  officer  shall  be  answerable.2 


1  This  article  refers  only  to  returns  made  by  certain  commanders  as  such.    It  is 
only  as  commander  of  a  regiment,  company,  or  garrison  that  an  officer  can  be  made 
amenable  to  a  charge  under  the  article.    An  officer  not  exercising  one  of  these  com- 
mands is  not  within  its  terms,  (a)    (Dig.  Opin.  J.  A.  Gen.,  22,  par.  1.) 

An  officer  "knowingly  makes  a  false  return"  under  this  article  who  makes  a  return 
which  ho  knows  to  be  untrue  in  any  material  particular.  (Ibid  ,  par.  2.) 

The  "returns"  indicated  in  the  article  can  scarcely  be  said  to  include  returns  of 
funds,  what  is  contemplated  being  mainly  returns  of  the  personnel  or  materiel  of  the 
command.  A  false  return  of  a  company  fund  would  more  properly  be  charged  under 
another  article,  as  the  sixty -first  or  sixty-second.  (Ibid.,  par.  3.) 

2  The  title  to  property  captured  from  an  enemy  in  war  vests,  at  the  instant  of  cap- 
ture, in  the  captor's  Government,  which  may  make  such  disposition  of  it  as  it  mav 
deem  expedient.    The  policy  and  practice  of  the  United  States,  as  to  property  cap- 
tured on  land,  has  been  to  retain  it  for  governmental  uses  or  to  sell  it  and  convert 
the  proceeds  to  its  own  use.    See  the  "  Captured  and  abandoned  property  act"  (act 
of  March  12,  1863),  in  the  chapter  entitled  EMPLOYMENT  OF  MILITARY  FORCE,  ETC. 

This  provision  is  in  accordance  with  the  principle  of  the  law  of  nations  and  ot  war, 
that  enemy's  property  duly  captured  in  war  becomes  the  property  of  the  Government 
or  power  by  whose  forces  it  is  taken,  and  not  that  of  the  individuals  who  take  it.(&) 


public  property,  as  well  as  to  make  rules  concerning  captures  on  laud  and  water,  can 

a  See  G.  C.  M.  0. 12, 19,  War  Department,  1872. 

&U.  S.  v.  Klein,  13  Wallace,  136;  Decatur  v.  U.  S.,  Devereux,  110;  Whiter.  Red 
Chief,  1  Woods,  40;  Branner  v.  Felkuer,  1  Heisk.,  232;  Worthy  v.  Kiuamou  44  Ga., 
299;  Huff  v.  Odom,  49  ibid.,  395;  13  Opiu.  Att.  Gen..  105;  Hough  (Practice),  329,330; 
G.  O.  54,  Headquarters  of  Army,  Mexico,  1848 ;  G.  0.  21,  War  Department,  1848 ;  G.  O. 
64,  107,  ibid.,  1862.  And  see  also  Lamar  v.  Browne,  2  Otto,  195,  in  regard  to  the  same 
principle  as  illustrated  by  the  captured  and  abandoned  property  act  of  March  12, 1863. 

c  Worthy  v.  Kinamon,  supra. 

(I  Article  I,  section.  8,  paragraph  11;  Article  IV,  section  3,  paragraph  2. 


708  THE   MILITARY   LAWS    OF    THE    UNITED    STATES. 


0-  Every  officer  commanding  a  troop,  battery,  or 

10  Art  war.    company,  is  charged  with  the  arms,  accouterments,  ammu- 

nition, clothing,  or  other  military  stores  belonging  to  his 
command,  and  is  accountable  to  his  colonel  in  case  of  their 
being  lost,  spoiled,  or  damaged  otherwise  than  by  unavoid- 
able accident,  or  on  actual  service. 

Mar103gi863  c      ART.  11.  Every  officer  commanding  a  regiment  or  an  iiide- 
736  8'  ^2>v<  12>  p  Pendent  troop,  battery,  or  company,  not  in  the  field,  may, 

11  Art.  war.    when  actually  quartered  with  -such  command,  grant  fur- 

loughs to  the  enlisted  men,  in  such  numbers  and  for  such 
time  as  he  shall  deem  consistent  with  the  good  of  the  serv- 
ice. Every  officer  commanding  a  regiment,  or  an  independ- 
ent troop,  battery,  or  company,  in  the  field,  may  grant 
furloughs  not  exceeding  thirty  days  at  one  time,  to  five  per 
centum  of  the  enlisted  men,  for  good  conduct  in  the  line  of 
duty,  but  subject  to  the  approval  of  the  commander  of  the 
forces  of  which  said  ennlisted  men  form  a  part.  Every 
company  officer  of  a  regiment,  commanding  any  troop, 
battery,  or  company  not  in  the  field,  or  commanding  in  any 
garrison,  fort,  post,  or  barrack,  may,  in  the  absence  of  his 
field-officer,  grant  furloughs  to  the  enlisted  men,  fora  time 
not  exceeding  twenty  days  in  six  months,  and  not  to  more 
than  two  persons  to  be  absent  at  the  same  time. 

i»ulrtr  war  ART.  12.  At  every  muster  of  a  regiment,  troop,  battery, 
or  company,  the  commanding  officer  thereof  shall  give  to 
the  mustering  officer  certificates,  signed  by  himself,  stating 
how  long  absent  officers  have  been  absent  and  the  reasons 
of  their  absence.  And  the  commanding  officer  of  every 
troop,  battery,  or  company  shall  give  like  certificates,  stat- 
ing how  long  absent  non-commissioned  officers  and  private 
soldiers  have  been  absent  and  the  reasons  of  their  absence. 
Such  reasons  and  time  of  absence  shall  be  inserted  in  the 
muster-rolls  opposite  the  names  of  the  respective  absent 
officers  and  soldiers,  and  the  certificates,  together  with  the 
muster-rolls,  shall  be  transmitted  by  the  mustering  officer 
to  the  Department  of  War.  as  speedily  as  the  distance  of 
the  place  and  muster  will  admit. 
cateasl8e  certifi'  ART.  13.  Every  officer  who  signs  a  false  certificate,  relat- 

13  Art.  war.    |ng  to  the  absence  or  pay  of  an  officer  or  soldier,  shall  be 
dismissed  from  the  service.1 

alone  authorize  the  sale  or  transfer  of  the  same.  An  officer  or  soldier  of  the  Army 
who  assumes  of  his  own  authority  to  appropriate  such  articles  renders  himself 
chargeable  with  a  military  offense.  (a)  (D*ig.  J.  A.  Gen.,  p.  22,  par.  1.) 

1  It  will  not  be  a  sufficient  defense  to  a  charge  under  this  article  that  the  accused 
believed  the  certificate  signed  by  him  to  bo  true  if  it  was  false  in  fact.  (&)  But  held 
that  the  mere  signing,  by  an  officer,  of  a  voucher  for  his  pay,  before  the  last  day  of 
the  month  for  which  it  was  due,  did  not  constitute  an  offense  of  the  class  intended 
to  be  made  punishable  by  this  article,  (c)  (Dig.  Opiii.  J.  A.  Gen.,  23.) 

a  See,  in  this  connection,  section  5313,  Revised  Statutes. 

I  Samuel,  298.    And  see  O'Brien,  302. 

c!See  G.  C.  M.  O.  28,  War  Department,  1872. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  709 

ART.  14.  Any  officer  who  knowingly  makes  a  false  mus-  ^^"war1"' 
ter  of  man  or  horse,  or  who  signs,  or  directs,  or  allows  the 
signing  of  any  muster-roll,  knowing  the  same  to  contain  a 
false  muster,  shall,  upon  proof  thereof  by  two  witnesses, 
before  a  court-martial,  be  dismissed  from  the  service,  and 
shall  thereby  be  disabled  to  hold  any  office  or  employment 
in  the  service  of  the  United  States. 

ART.  15.  Any  officer  who,  willfully  or  through  neglect,    Allowing  mm- 

J  ?  tary  stores  to  be 

suffers  to  be  lost,  spoiled,  or  damaged,  any  military  stores  dam  aged, 
belonging  to  the  United  States,  shall  make  good  the  loss  67,  s.  i.  v.  12,' p'. 
or  damage,  and  be  dismissed  from  the  service.  15  Art.  war. 

ART.  16.  Any  enlisted  man  who  sells,   or  willfully  or    wasting  am- 

J  munition. 

through  neglect  wastes  the  ammunition  delivered  out  to    i«  Art.  War. 
him,  shall  be  punished  as  a  court-martial  may  direct. 

ART.  17.  Any  soldier  who  sells  or  through  neglect  loses    Selling  horse, 
or  spoils  his  horse,  arms,  clothing,  or  accoutrements  shall faSed  °by  econr£ 
be  punished  as  a  court-martial  may  adjudge,  subject  to™!™™1 '27,  1392, 
such  limitations  as  maybe  prescribed  by  the  President  by  v'  I }'  Jrt!7war. 
virtue  of  the  power  vested  in  him.1 

ART.  18.  Any  officer  commanding  in  any  garrison,  fort,    Commanders 

'  not  to  be  inter- 

or  barracks  of  the  United  States  who,  for  his  private  ad-csted  in  sale  of 

victuals,  etc. 

vantage,  lays  any  duty  or  imposition  upon,  or  is  interested    is  Art.  war. 

•This  article  is  quite  independent  of  the  regulations  contained  in  article  60,  Army 
Regulations,  relating  to  boards  of  survey.  The  latter  pass  upon  questions  of  pecun- 
iary responsibility  for  the  loss,  etc.,  of  public  property.  Tho  court-martial,  under 
this  article,  simply  imposes  punishment,  (a;  (Ibid.,  23,  par.  1.) 

The  description,  "his  clothing,"  refers  to  articles  which  are  regularly  issued  to  the 
soldier  for  his  use  in  the  service  and  with  the  safe-keeping  of  which  he  is  charged. 
His  property  in  them  is  qualified  by  the  trust  that  lie  can  not  dispose  of  them  while 
he  is  in  the  military  service,  and  can  only  use  them  for  military  purposes.  (Ibid., 
par.  2.) 

Improper  dispositions  of  property  in  the  charge  and  use  of  soldiers,  other  than 
those  indicated  in  the  article,  Avill  in  general  properly  be  charged  under  article  62. 
(Ibid. ,24,  par.  3.) 

Only  three  offenses  are  made  punishable  by  this  article — soiling,  through  neglect 
losing,  through  neglect  spoiling.  Any  other  form  of  wrongful  disposition  should  be 
made  the  subject  of  a  charge  under  article  CO  or  article  G2.  The  selling,  losing, etc., 
of  objects  other  than  those  mentioned  in  this  article  should  bo  charged  under  article 
62.  Held  that  a  selling  or  losing  of  the  following  articles  was  not  punishable  under 
article  17,  viz.,  sheets,  pillows,  pillowcases,  mattress  covers,  shelter  tent,  barrack 
bag,  greatcoat  strap,  tin  cup,  spoon,  knife,  fork,  meat-ration  can,  cartridges.  (Ibid., 
par.  4.) 


'Unlawfully  disposing  of"  (or  "otherwise  unlawfully  disposing  of")  clothing, 
arms,  etc.,  is  not  a  proper  form  for  the  charge  under  this  article.  A  charge  under 
this  article  should  not  be  expressed  in  the  alternative— as  that  the  accused  "  i 


or  "through  neglect  lost."  The  selling,  through  neglect  losing,  and  through  neg- 
lect spoiling,  are  distinct  offenses  and  are  to  be  so  charged.  (Ibid.,  par.  5.) 

Clothing  issued  and  charged  to  a  soldier  is  not  now  (as  it  was  formerly)  regarded 
as  remaining  the  property  of  the  United  States.  It  is  now  considered  as  becoming, 
upon  issue,  the  property  of  the  soldier,  although  his  use  of  it  is,  for  purposes  of  dis- 
cipline, qualified  and  restricted.  Thus,  he  commits  a  military  offense  by  disposing  of 
it  as  specified  in  this  article,  though  the  United  States  may  suffer  no  loss.  (Ibid., 
par.  6.) 

The  present  seventeenth  article  (as  amended  by  the  act  of  July  27,  1892)  does  not 
authorize  a  stoppage  or  forfeiture  of  pay  to  reimburse  the  United  States.  The  stop- 
page which  was  enjoined  by  the  old  form  of  the  article  is  dropped  entirely  from  the 
present  statute.  This  provides  for  punishment  only— does  not  provide  any  means 
of  reimbursing  the  appropriation  out  of  which  the  lost,  «tc.,  property  was  paid  for, 
or  of  repairing  the  loss  or  damage  as  such.  So,  held  (April,  1893)  tb.at  a  sentence, 
upon  a  conviction  under  this  article,  which  adjudged  a  stoppage  of  pay  "to  reim- 
burse the  United  States  for  the  value  of  the  clothing  alienated  "  was  unauthorized 
and  inoperative.  (Ibid.,  %,  par.  7.) 

a  Where  a  trial  is  had,  the  proceedings  of  a  board  of  survey,  already  ordered  in  the 
same  case,  will  not  be  competent  evidence  to  prove  the  fact  of  the  Jos's,  etc.,  charged. 
G.  C.  M.  0. 45,  Department  of  the  Missouri,  1877 ;  G.  C.  M.  0. 15,  Department  of  Texas, 


710  THE    MILITARY   LAWS    OF    THE    UNITED    STATES.   , 

in,  the  sale  of  any  victuals,  liquors,  or  other  necessaries  of 

life,  brought  into  such  garrison,  fort,  or  barracks,  for  the 

use  of  the  soldiers,  shall  be  dismissed  from  the  service. 

w?rdrrPSah£t     ART.  19.  Any  officer  who  uses  contemptuous  or  disre- 

etc  Prosident'  spectful  words  against  the  President,  the  Vice-President, 

19  Art.  war.    £jie  Congress  of  the  United  States,  or  the  chief  magistrate 

or  legislature  of  any  of  the  United  States  in  which  he  is 

quartered,  shall  be  dismissed  from  the  service,  or  other- 

wise punished,  as  a  court-martial  may  direct.    Any  soldier 

who  so  offends  shall  be  punished  as  a  court-martial  may 

direct.1 

Disrespect  to-     ART.  20.  Any  officer  or   soldier  who  behaves  himself 

ward   command- 


info°Arterwar     w*^  Disrespect  toward  his  commanding  officer  shall  be 

punished  as  a  court-martial  may  direct.2 

e^ior^mce?  su  ART.  21.  Any  officer  or  soldier  who,  on  any  pretense 
21  Art.  war.  whatsoever,  strikes  his  superior  officer,  or  draws  or  lifts 
up  any  weapon,  or  offers  any  violence  against  hiin,  being 
in  the  execution  of  his  office,  or  disobeys  any  lawful  com- 
mand of  his  superior  officer,  shall  suffer  death,  or  such 
other  punishment  as  a  court-martial  may  direct.3 

1  When  a  trial  of  an  officer  or  soldier  has  been  resorted  to  under  this  article,  it  has 
usually  been  on  account  of  the  use  of  "contemptuous  or  disrespectful  words  against 
the  President,"  or  the  Government  mainly  as  represented  bv  the  President.    The 
deliberate  employment  of  denunciatory  or'  contumelious  language  in  regard  to  the 
President,  whether  spoken  in  public,  or  published,  or  conveyed  in  a  communication 
designed  to  be  made  public,  has,  in  repeated  cases,  been  made  the  subject  of  charges 
and  trial  under  this  article  ;  (a)  and,  where  taking  the  form  of  a  hostile  arraignment, 
by  an  officer,  of  the  President  or  his  Administration,  for  the  measures  adopted  in 
carrying  on  the  late  war—  a  juncture  when  a  peculiar  obedience  and  deference  were 
due,  on  the  part  of  the  subordinate,  to  the  President  as  Executive  and  Commander 
in  Chief—  was  in  general  punished  by  a  sentence  of  dismissal.    On  the  other  hand,  it 
was  held  that  adverse  criticisms  of  the  acts  of  the  President,  occurring  in  political 
discussions,  and  which,  though  characterized  by  intemperate  language,  were  not 
apparently  intended  to  be  disrespectful  to  the  President  personally  or  to  his  office, 
or  to  excite  animosity  against  him,  were  not  in  general  to  be  regarded  as  properly 
exposing  officers  or  soldiers  to  trial  under  this  article.    To  seek,  indeed,  for  ground 
of  offense  in  such  discussions  would  ordinarily  be  inquisitorial  and  beneath  the  dig- 
nity of  the  Government.     (Ibid.,  25.) 

2  The  disrespect  here  indicated  may  consist  in  acts  or  words  ;  (b)  and  the  particu- 
lar acts  or  words  relied  upon  as  constituting  the  offense  should  properly  be  set  forth 
in  substance  in  the  specification,  (c)    It  must  be  shown  in  evidence  under  the  charge 
that  the  officer  offended  against  was  the  "commanding  officer"  of  the  accused,  (d) 
The  commanding  officer  of  an  officer  or  soldier  in  the  sense  of  this  article  is  properly 
the  superior  who  is  authorized  to  require  obedience  to  his  orders  from  such  officer  or 
soldier,  at  least  for  the  time  being.    Thus  where  a  battalion  was  temporarily  detached 
from  a  regiment  and  placed  under  the  orders  of  the  commander  of  a  portion  of  the 
Army  distinct  from  that  in  which  the  main  part  of  the  regiment  was  included,  held 
that  it  was  the  commander  of  this  portion  who  was  the  commanding  officer  of  the 
detachment,  and  that  the  use  by  an  officer  of  such  detachment  of  disrespectful  lan- 
guage in  reference  to  the  regimental  commander  (who  had  remained  with  and  in  com- 
mand of  the  main  body  of  the  regiment)  was  properly  chargeable  not  under  this  arti- 
cle, but  rather  under  the  sixty-second.     (Dig.  Opin.  'j.  A.  Gen.,  26,  par.  1.) 

Held  that  disrespectful  language  used  in  regard  to  his  captain  by  a  soldier  when 
detached  from  his  company  and  serving  at  a  hospital,  to  the  surgeon  in  charge  of 
which  he  had  been  ordered  to  report  for  duty,  was  an  offense  cognizable  by  court- 
martial  not  under  this  article,  but  under  article  G2.  (Ibid.,  par.  2.) 

3  To  justify  a  conviction  of  the  capital  offense  of  offering  violence  against  a  superior 
officer,  it  should  be  made  to  appear  in  evidence  that  the  accused  knew  or  believed 

a  See  cases  in  G.  C.  M.  O.  43,  War  Department,  1863;  G.  O.  171,  Armv  of  the  Po- 
tomac, 1862;  G.  0.  23,  ibid.,  1863;  G.  0.  52,  Middle  Department,  1863;  G.  0.^119,  Depart- 
ment of  the  Ohio,  1863  ;  G.  0.  33,  Department  of  the  Gulf,  1863  ;  G.  0.  68,  Department 
of  Washington,  1864  ;  G.  0.  86,  Northern  Department,  1864  ;  G.  0.  1,  ibid.,  1865  ;  G.  0.  29. 
Department  of  North  Carolina,  1865. 

6  G.  O.  44,  Department  of  Dakota.  1872.  And  see  G.  C.  M.  0.  28,  War  Department, 
1875;  G.  0.  47,  Department  of  the  Platte,  1870. 

c  Gr.  C.  M.  0.  35,  Department  of  the  Missouri,  1872. 

dG.  0.  53,  Department  of  Dakota,  1871. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  711 

ART.  22.  Any  officer  or   soldier  who  begins,   excites, 
causes,  or  joins  in  any  mutiny  or  sedition,  in  any  troop, 

that  the  person  assaulted  was  in  fact  an  officer  in  the  Army  and  was  his  "superior" 
in  rank,  (a)  (Ibid.,  27,  par.  1.) 

Under  a  charge  of  a  Ariolation  of  this  article  in  offering  violence  to  a  superior  officer, 
it  should  be  alleged  and  proved  that  the  officer  assaulted  was  at  the  time  "in  the  exe- 
cution of  his  office."  (Ibid.,  par.  2.) 

Jleld  that  in  charging  a  striking  or  doing  of  violence  to  a  superior  officer  under  this 
article,  in  a  case  where  the.  assault  was  fatal,  it  was  allowable  to  add  in  the  specifica- 
tion, "thereby  causing  his  death,"  as  indicating  the  measure  of  violence  employed. 
(Ibid.,  par.  3.) 

The  "superior  officer"  in  the  sense  of  this  article  need  not  necessarily  have  been 
the  commanding  officer  of  the  accused  at  the  time  of  the  offense.  The  article  is  thus 
broader  than  article  20,  which  relates  only  to  an  offense  against  a  "commanding 
officer."  (Ibid.,  par  4.) 

Where  an  inferior  officer  was  charged  with  having  disobeyed  an  order  given  him 
on  the  spot  by  a  superior  officer,  held  that  it  should  be  made  to  appear  in  proof  that 
the  latter,  if  not  personally  known  to  the  accused  to  be  his  superior  officer,  was  rec- 
ognizable as  such  by  his  uniform  or  otherwise.  (Ibid.,  par.  5.) 

A  noncomplianco  by  a  soldier  with  an  order  emanating  from  a  noncommissioned 
officer  is  not  an  offense  under  this  article,  but  one  to  be  charged,  in  general,  under 
the  sixty-second,  (b)  (Ibid,  par.  6.) 

Under  a  charge  of  a  disobedience  of  the  order  of  a  superior  officer  in  violation  of 
this  article,  it  should  be  alleged,  and  should  appear  from  the  evidence  introduced, 
that  the  order  or  "command"  was  "lawful."  An  officer  or  soldier  is  not  punish- 
able under  this  article  for  disobeying  an  unlawful  order.  But  the  order  of  a  proper 
superior  is  to  be  presumed  to  be  lawful,  and  should  be  obeyed,  where  it  is  not 
clearly  and  obviously  in  contravention  of  law.  Unless  the  illegality  is  unquestion- 
able, he  should  obey  first  and  seek  redress,  if  entitled  to  any,  afterwards.  A  mili- 
tary inferior  in  refusing  or  failing  to  comply  with  the  order  of  a  superior  on  the 
ground  that  the  same  is,  in  his  opinion,  unlawful,  does  so,  of  course,  on  his  own 
personal  responsibility  and  at  his  own  risk.  (Ibid.,  par.  7.) 

To  justify,  from  a  military  point  of  view,  a  military  .inferior  in  disobeying  the 
order  of  a  superior,  the  order  must  be  one  requiring  something  to  be  done  which  is 
palpably  a  breach  of  law  and  a  crime  or  an  injury  to  a  third  person,  or  is  of  a  serious 
character  (not  involving  unimportant  consequences  only)  and  if  done  would  not  be 
susceptible  of  being  righted.  An  order  requiring  the  performance  of  a  military 
d  uty  or  act  can  not  be  disobeyed  with  impunity  unless  it  hds  one  of  these  characters. 
If  riot  triable  under  the  twenty-first  article,  such  disobedience  may  be  tried  under 
the  sixty-second.  In  the  Cedarquist  case  it  was  held  by  the  Judge- Advocate-General 
that  "there  could  be  no  more  dangerous  principle  iii  the  government  of  the  Army 
than  that  each  soldier  should  determine  for  himself  whether  an  order  requiring  a 
military  duty  to  be  performed  is  necessary  or  in  accordance  with  orders,  regulations, 
decision  circulars,  or  custom,  and  may  disobey  the  order  if,  in  his  judgment  (taking, 
of  course,  all  risks  in  case  his  judgment  should  be  erroneous),  it  should  not  be  neces- 
sary or  should  bo  at  variance  with  orders,  regulations,  decision  circulars,  or  custom. 
It  is  his  duty  to  obey  such  order  first,  and  if  he  should  be  aggrieved  thereby,  he  can 
seek  redress  afterwards." 

The  civil  responsibility  is  another  matter.  Civil  courts  have  sometimes  made 
allowance  for  the  requirements  of  military  discipline,  but,  if  they  should  not,  the 
military  obligation  would  remain  unimpaired.  The  soldier,  in  entering  the  service, 
has  voluntarily  submitted  himself  to  this  double  and  possibly  conflicting  liability. 
The  evil  of  an  undisciplined  soldiery  would  bo  far  greater  than  the  injustice  (appar- 
ent, rather  than  actual)  of  this  principle.  (Opin.  J.  A.  Gen.) 

"The  first  duty  of  a  soldier  is  obedience,  and  without  this  there  can  be  neither 
discipline  nor  efficiency  in  an  army."  (McCall  v.  McDowell,  15  Fed.  Gas.,  1235.) 

"To  insure  efficiency  an  army  must  be,  to  a  certain  extent,  a  despotism.  Each 
officer  *  *  *  is  invested  with  an  arbitrary  power  over  those  beneath  him,  and 
the  soldier  who  enlists  in  the  army  waives,  in  some  particulars,  his  rights  as  a  civil- 
ian, surrenders  his  personal  liberty  during  the  term  of  his  enlistment,  and  consents 
to  come  and  go  at  the  will  of  his  superior  officers.  He  agrees  to  become  amenable  to 
the  military  courts,  to  be  disciplined  for  offenses  unknown  to  the  civil  law,  to  relin- 
quish his  right  of  trial  by  jury,  and  to  receive  punishments  which,  to  the  civilian, 
seem  out  of  all  proportion  to  the  magnitude  of  the  offense."  (U.  S.  v.  Clarke,  3  Fed. 
Rep.,  713— Brown,  J.) 

"An  army  is  not  a  deliberative  body.  It  is  the  executive  arm.  Its  law  is  that  of 
obedience.  No  question  can  be  left  open  as  to  the  right  to  command  in  the  officer,  or 
the  duty  of  obedience  in  the  soldier.  Vigor  and  efficiency  on  the  part  of  the  officer 
and  confidence  among  the  soldiers  in  one  another  are  impaired  if  any  question  be 
left  open  as  to  their  attitude  to  each  other."  (In  re  Grimley,  137  U.  S.,'l53.) 

The  offense  of  disobedience  of  orders  contemplated  by  this  article  consists  in  a 
refusal  or  neglect  to  comply  with  a  specific  order  to  do  or  not  to  do  a  particular 
thing.  A  mere  failure  to  perform  a  routine  duty  is  properly  charged  under  article 
62.  (c)  Where  an  officer  neglected  fully  to  perform  his  duty  under  general  instruc- 
tions given  him  in  regard  to  the  conduct  of  an  expedition  against  Indians,  held  that 
his  offense  was  properly  chargeable  not  under  the  twenty-first  but  under  the  sixty- 
second  article.  (Dig.  Opin.  J.  A.  Gen.,  28,  par.  9.) 

An  officer  or  soldier  on  leave  of  absence  can  not  in  general  be  made  liable  to  a 

a  See  G.  0.  34,  Department  of  Virginia,  1863. 

6  See  the  provision,  introductory  to  the  Articles  of  War,  of  section  1342,  Revised 
Statutes,  in  which  it  is  specified  that  "the  word  officer,  as  used  therein,  shall  be 
understood  to  designate  commissioned  officers." 

c  See  G.  C.  M.  O.  28,  War  Department,  1872;  G.  C.  M.  O.7,  Department  of  Texas, 
1875;  G.  0. 24, 35,  Fifth  Military  District,  1868. 


712      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

battery,  company,  party,  post,  detachment,  or  guard,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct.1 
Failing  to  re-     ART.  23.  Any  officer  or  soldier  who,  being  present  at  any 

sist  mutiny.  *  ' 

23  Art.  War.    mutiny  or  sedition,  does  not  use  his  utmost  endeavor  to 

charge  of  disobedience  of  orders,  except,  indeed,  where  required  by  a  positive  order, 
issued  on  account  of  a  public  emergency,  to  return  before  his  leave  has  expired,  and 
failing  to  comply  with  such  requirement.  (Ibid.,  29,  par.  10.) 

An  illiterate  soldier,  unable  to  sign  his  name,  was  furnished  with  a  written  exhibit 
of  it,  and  ordered  by  his  commanding  officer  to  continue  to  copy  the  same  till  he 
could  properly  sign  his  name  to  papers.  He  refused.  Held  that  such  order,  while 
not  in  fact  a  legal  one,  was  not  one  palpably  illegal,  and  that  the  soldier  should  have 
obeyed  it  and  complained  afterwards.  Disobedience  of  an  order,  however,  where  its 
illegality  is  merely  doubtful,  should  be  charged  under  the  sixty-second  rather  than 
under  this  article.  (Ibid.,  par.  12.) 

Where  an  officer  respectfully  declined  to  comply  with  the  direction  of  his  superior 
to  sign  the  certificate  to  a  report  of  target-firing,  on  the  ground  that  the  facts  set 
forth  in  such  certificate  were  not  within  his  knowledge,  he  having  been  stationed  at 
the  butt,  where  he  was  not  in  a  position  to  be  informed  as  to  such  facts,  held  that  he 
was  not  amenable  to  a  charge  of  disobedience  of  orders  under  this  article.  (Ibid., 
30,  par.  16.) 

The  term  officer  ("superior  officer''),  in  this  as  in  other  articles  of  war,  means  com- 
missioned officer.  (Section  1342,  Kevised  Statutes.)  So  held  that  the  disobedience 
by  a  cadet  private  of  the  Military  Academy  of  an  order  of  a  cadet  lieutenant  of  his 
company  was  not  chargeable  under  this  article,  but  was  an  offense  under  article  62. 
(Ibid.,  par.  17.) 

1  Mutiny  at  military  law  may  be  defined  to  be  an  unlawful  opposing  or  resisting  of 
lawful  military  authority,  with  intent  to  subvert  the  same,  or  to  nullify  or  neutral- 
ize it  for  the  time,  (a)  It  is  this  intent  which  distinguishes  mutiny  from  other 
offenses,  and  especially  from  those  with  which,  to  the  embarrassment  of  the  student, 
jt  has  frequently  been  coni'used,  viz,  those  punishable  by  the  twenty-first  article,  as 
also  those  which,  under  the  name  of  "mutinous  conduct,"  are  merely  forms  of  viola- 
tion of  article  62.  The  offenses  made  punishable  by  this  article  are  not  necessarily 
"aggregate"  or  joint  offenses;  (b)  among  them  is  the  beginning  or  causing  of  a 
mutiny,  which  may  be  committed  by  a  single  person.  In  general,  however,  the 
offense  here  charged  will  be  a  concerted  proceeding,  the  concert  itself  going  far  to 
establish  the  intent  necessary  to  the  legal  crime.  (Dig.  Opin.  J.  A.  Gen.,  p.  30,  par.  1.) 

To  charge  as  a  capital  offense  under  this  article  a  mere  act  of  insubordination  or 
disorderly  conduct  on  the  part  of  an  individual  soldier  or  officer,  unaccompanied  by 
the  intent  above  indicated,  is  irregular  and  improper,  (c)  Such  an  act  should  in 
general  be  charged  under  article  20,  21,  or  62.  (Ibid.,  31,  par.  1.) 

Soldiers  can  not  properly  be  charged  with  the  offense  of  joining  in  a  mutiny  under 
this  article  where  their  act  consists  in  refusing,  in  combination,  to  comply  with  an 
unlawful  order.  Thus,  whore  a  detachment  of  volunteer  soldiers  who,  under  and 
by  virtue  of  acts  of  Congress  specially  authorizing  the  enlistment  of  volunteers  for 
the  purpose  of  the  siippression  of  the  rebellion,  and  with  the  full  understanding  on 
their  part  and  that  of  the  officers  by  whom  they  were  mustered  into  the  service  that 
they  were  to  be  employed  solely  for  this  purpose,  entered  into  enlistments  expressed 
In  terms  to  be  for  the  war,  and  after  doing  faithful  service  during  the  war,  and  just 
before  the  legal  end  of  the  war,  but  when  it  was  practically  terminated,  and  when  the 
volunteer  organizations  were  being  mustered  out  as  no  longer  required  for  the  prose- 
cution of  the  war,  were  ordered  to  march  to  the  Plains,  and  to  a  region  far  distant 
from  the  theater  of  the  late  war,  and  engage  infighting  Indians,  wholly  unconnected 
as  allies  or  otherwise  with  the  recent  enemy,  and  thereupon  refused  together  to  com- 
ply with  such  orders,  held  that  they  were  not  chargeable  witli  mutiny.  While  by 
the  strict  letter  of  their  contracts  they  were  subject  to  bo  employed  upon  any  mili- 
tary service  up  to  the  last  day  of  their  terms  of  enlistment,  the  public  acts  aud 
history  of  the  time  made  it  perfectly  clear  that  this  enlistment  was  entered  into 
for  the  particular  purpose  and  in  contemplation  of  the  particular  service  above  indi- 
cated, and  to  treat  the  parties  as  bound  to  another  and  distinct  service,  and  liable  to 
capital  punishment  if  they  refused  to  perform  it,  was  technical,  unjust,  and  in  sub- 
stance illegal.  (Ibid,  par.  3.) 

In  a  case  where  a  brief  mutiny  among  certain  soldiers  of  a  colored  regiment  was 
clearly  provoked  by  inexcusable  violence  on  the  part  of  their  officer,  the  outbreak 
not  having  been  premeditated,  and  the  men  having  been  prior  thereto  subordinate 
and  well  conducted,  advised  that  a  sentence  of  death  imposed  by  a  court-martial  upon 
one  of  -the  alleged  mutineers  should  be  mitigated  and  the  officer  himself  brought  to 
trial.  Similarly  advised  in  the  cases  of  sentences  of  long  terms  of  imprisonment 
imposed  upon  sundry  colored  soldiers  who,  without  previous  purpose  of  revolt,  had 
been  provoked  into  momentary  mutinous  conduct  by  the  recklessness  of  their 
officer  in  firing  upon  them  and  wounding  several,  in  order  to  suppress  certain  insub- 
ordination which  might  apparently  have  been  quelled  by  oriinary  inetnods.  (d) 
(Ibid.,  32,  par.  4.) 

a  Compare  the  definition  and  description  of  mutiny  or  revolt  at  maritime  law  in 
U.  S.  v.  Smith,  1  Mason,  147;  U.  S.  v.  Haines,  5  ibid.,  276;  TJ.  S.  v.  Kelly,  4  Wash.,  528; 
U.  S.  v.  Thompson,  1  Sumner,  171 ;  U.  S.  v.  Borden,  1  Sprague,  376. 

b  Samuel,  254,  257;  G.  O.  77,  War  Department,  1837;  G.  0. 10,  Department  of  the 
Missouri,  1863. 

c  See  G.  0. 7,  War  Department,  1848 ;  G.  0. 115,  Department  of  Washington.  1865 ; 
G.C.M.  O.  73,  Department  of  the  Missouri,  1873.  And  compare  D.  S.  v.  Smith,  1 
Mason,  147;  U.  S.fl.  Kelly,  4  Wash.,  528;  U.  S.  v.  Thompson,  1  Sumner,  171. 

d  Compare  cases  in  G.  0. 12,  War  Department,  1855;  G.  O.  104,  ibid.,  1863 ;  G.  C-M. 
0. 50,  Headquarters  of  Army,  1867. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  713 

suppress  the  same,  or  having  knowledge  of  any  intended 
mutiny  or  sedition,  does  not,  without  delay,  give  informa- 
tion thereof  to  his  commanding  officer,  shall  suffer  death, 
or  such  other  punishment  as  a  court-martial  may  direct. 

ART.  24.  All  officers,  of  what  condition  soever,  havef  Qusarrel8  and 
power  to  part  and  quell  all  quarrels,  frays,  and  disorders,    24  Art-  War« 
whether  among  persons  belonging  to  his  own  or  to  another 
corps,  regiment,  troop,  battery,  or  company,  and  to  order 
officers  into   arrest,   and  non-commissioned  officers   and 
soldiers  into  confinement,  who  take  part  in  the  same,  until 
their  proper  superior  officer  is  acquainted  therewith.    And 
whosoever,  being  so  ordered,  refuses  to  obey  such  officer 
or  non-commissioned  officer,  or  draws  a  weapon  upon  him, 
shall  be  punished  as  a  court-martial  may  direct.1 

ART.  25.  No  officer  or  soldier  shall  use  any  reproach  fulor*erp0rv?J^^ 
or  provoking  speeches  or  gestures  to  another.    Any  officer  8p£fcJrt-  War 
who  so  offends  shall  be  put  in  arrest.    Any  soldier  who  so 
offends  shall  be  confined,  and  required  to  ask  pardon  of 
the  party  offended,  in  the  presence  of  his  commanding 
officer.2 

ART.  26.  No  officer  or  soldier  shall  send  a  challenge  to  ft  challenges  to 

fight  duels. 

another  officer  or  soldier  to  fight  a  duel,  or  accept  a  chal-    Feb.  27,  1377,  v. 

19,  p.  244. 

lenge  so  sent.    Any  officer  who  so  offends  shall  be  dis-    26  Art.  war. 
missed  from  the  service.     Any  soldier  who  so  offends  shall 
suffer  such  punishment  as  a  court-martial  may  direct.3 

]It  is  a  principle  of  the  common  law  that  any  bystander  may  and  should  arrest 
an  affrayer.  (1  Hawkins,  P.  C.,  c.  63,  s.  11  ;  Timothy  v.  Simpson,  1  C.  M.  &  11.,  762,  765; 
Phillips  v.  Tnill,  11  Johns  ,  487.)  And  that  an  officer  or  soldier,  by  entering  the  mil- 
itary service,  does  not  cease  to  be  a  citizen  and  as  a  citizen  is  authorized  and  bound 
to  put  a  stop  to  a  breach  of  the  peace  committed  in  his  presence,  has  been  specific- 
ally held  by  the  authorities.  (Burdett  v.  Abbott,  4  Taunt  ,449;  Bowyer,  Com.  on 
Const.  L.  of  Eng.,  499;  Simmons,  sees.  1096-1100.)  This  article  is  thus  an  application 
of  an  established  common-law  doctrine  to  the  relations  of  the  military  service.  (See 
its  application  illustrated  in  the  following  general  orders:  G.  0.  4,  War  Department, 
1843;  G.  0.  63,  Department  of  the  Tennessee,  1863;  G.  0.  104,  Department  of  the  Mis- 
souri, 1863  ;  G.  O.  52,  Department  of  the  South,  1871  ;  G.  0.  92,  ibid.,  1872.)  (Dig.  J.  A. 
Gen.,  32.) 

5  This  article  confers  no  jurisdiction  or  power  to  punish  on  courts-martial,  but 
merely  authorizes  the  taking  of  certain  measures  of  prevention  and  restraint  by 
commanding  officers  ;  i.  e.,  measures  preventive  of  serious  disorders  such  as  are  indi- 
cated in  the  two  following  articles  relating  to  duels,  (a)  (Ibid.,  33.) 

'•To  establish  that  a  challenge  was  sent,  there  must  appear  to  have  been  communi- 
cated by  one  party  to  the  other  a  deliberate  invitation  in  terms  or  in  substance  to 
engage  in  a  personal  combat  with  deadly  weapons,  with  a  view  of  obtaining  satis- 
faction for  wounded  honor,  (b)  The  expression  merely  of  a  willingness  to  fight,  or 
the  use  simply  of  language  of  hostility  or  defiance,  will  not  amount  to  a  challenge. 
On  the  other  hand,  though  the  language  employed  be  couched  in  ambiguous  terms, 
with  a  view  to  the  evasion  of  the  legal  consequences,  yet  if  the  intention  to  invite  to 
a  duel  is  reasonably  to  be  implied  —  and  ordinarily,  notwithstanding  the  stilted  and 
obscure  verbiage  employed,  this  intent  is  quite  transparent—  a  challenge  will  be 
deemed  to  have  been  given.  And  the  intention  of  the  message,  where  doubtful 
xipon  its  face,  may  be  illustrated  in  evidence  by  proof  of  the  circumstances  under 
which  it  Avas  sent,  and  especially  of  the  previous  relations  of  the  parties,  the  con- 
tents of  other  communications  between  them  on  the  same  subject,  etc.  (c)  And 
technical  words  in  an  alleged  challenge  may  be  explained  by  a  reference  to  the  so- 
called  duelling  code.  (d).  (Dig.  J.  A.  Gen.,  33.) 


It  may  be  noted  that  our  Articles  of  War,  unlike  the  British,  fail  to  make  pun 
ishable,  as  a  specific  military  offense,  the  engaging  in  a  duel.  Such  an  act,  therefore 
would,  as  such,  be  in  general  chargeable  only  under  article  62.  (Ibid.,  34.) 


o  Compare  Samuel,  372. 

fc  Compare  the  definition  in  2  Wharton,  Cr.  L.,  sees.  2624-2679. 

c  See  note  1  to  article  27,  par.  2. 

d  States.  Gibbons,  1  South,  51. 


714 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Allowing  per-     ART.  27.  Any  officer  or  non-commissioned  officer,  corn- 
sons  to  go  out 
and  fight;  sec  niauding  a  guard,  who,  knowingly  and  willingly,  suffers 

any  person  to  go  forth  to  figlit  a  duel,  shall  be  punished  as 


moters. 


inf8CArt!ewlr'. 


29  Art.  war. 


30  Art.  war. 


a  challenger;  and  all  seconds  or  promoters  of  duels,  and 
carriers  of  challenges  to  fight  duels,  shall  be  deemed  prin- 
cipals, and  punished  accordingly.  It  shall  be  the  duty  of 
any  officer  commanding  an  army,  regiment,  troop,  battery, 
company,  post  or  detachment,  who  knows  or  has  reason  to 
believe  that  a  challenge  has  been  given  or  accepted  by  any 
officer  or  enlisted  man  under  his  command,  immediately  to 
arrest  the  offender  and  bring  him  to  trial.1 

ART.  28.  Any  officer  or  soldier  who  upbraids  another 
officer  or  soldier  for  refusing  a  challenge  shall  himself  be 
punished  as  a  challenger;  and  all  officers  and  soldiers  are 
hereby  discharged  from  any  disgrace  or  opinion  of  disad- 
vantage which  might  arise  from  their  having  refused  to 
accept  challenges,  as  they  will  only  have  acted  in  obedience 
to  the  law,  and  have  done  their  duty  as  good  soldiers,  who 
subject  themselves  to  discipline. 

ART.  29.  Any  officer  who  thinks  himself  wronged  by  the 
commanding  officer  of  his  regiment,  and,  upon  due  appli- 
cation to  such  commander,  is  refused  redress,  may  complain 
to  the  general  commanding  in  the  State  or  Territory  where 
such  regiment  is  stationed.  The  general  shall  examine  into 
said  complaint  and  take  proper  measures  for  redressing 
the  wrong  complained  of;  and  he  shall,  as  soon  as  possible, 
transmit  to  the  Department  of  War  a  true  statement  of 
such  complaint,  with  the  proceedings  had  thereon. 

ART.  30.  Any  soldier  who  thinks  himself  wronged  by 
any  officer  may  complain  to  the  commanding  officer  of  his 
regiment,  who  shall  summon  a  regimental  court-martial  for 
the  doing  of  justice  to  the  complainant.  Either  party  may 
appeal  from  such  regimental  court-martial  to  a  general 
court-martial;  but  if,  upon  such  second  hearing,  the  appeal 
appears  to  be  groundless  and  vexatious,  the  party  appeal- 
ing shall  be  punished  at  the  discretion  of  said  general 
court-martial.2 

'On  the  general  subject  of  challenges,  and  the  question  what  constitutes  a  chal- 
lenge, see  the  principal  cases  of  the  sending  of  challenges  in  our  service-,  as  pub- 
lished in  G.  O.  64,  A.  G.  O.,  1827 ;  G.  O.  39, 41,  ibid.,  1835 ;  G.  O.  2.  War  Department, 
1858;  G.  O.,330,  ibid.,  1863;  G.  0. 11,  Army  of  the  Potomac,  1861 ;  G.  O.  46,  Depart- 
ment of  the  Gulf,  1863;  G.  O.  223,  Department  of  the  Missouri,  1864;  G.  O.  130, 
ibid. ,1872;  G.  0. 33,  Department  and  Army  of  the  Tennessee,  1864.  And  compare 
Commonwealth  v.  Levy,  2  Wheeler,  Cr.  C.',  245 ;  Commonwealth  v.  Tibbs,  1  Dana,  52-1  ; 
Commonwealth  v.  Hart.  6  J.  J.  March,  119;  State  v.  Taylor,  1  So.  Ca.,  108;  State  v. 
Strickland,  2  Nott  &  McCord,  181 ;  Ivey  v.  State,  12  Ala..  277;  Aulger  v.  People,  34 
III.,  486 ;  2  Bishop,  Cr.  L.,  sec.  314 ;  Samuel,  384-387 ;  State  v.  Gibbons,  I  South,  51. 

2 See  the  title  "Regimental  Courts-Martial"  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

This  article  is  not  inconsistent  with  article  83,  which  prohibits  regimental  courts 
from  trying  commissioned  officers.  It  does  not  contemplate  or  provide  for  a  trial  of 
an  officer  as  an  accused,  but  simply  an  investigation  and  adjustment  of  some  matter 
in  dispute— as,  for  example,  a  question  of  accountability  for  public  property,  of  right 
to  pay  or  to  an  allowance,  of  relief  from  a  stoppage,  etc.  The  regimental  court  does 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  715 

ART.  31.  Any  officer  or  soldier  who  lies  out  of  his  quar-  £J™j8  out  of 

ters,  garrison,  or  camp,  without  leave  from  his  superior  si  Art.  war. 
officer,  shall  be  punished  as  a  court  martial  may  direct. 

ART.  32.  Any  soldier  who  absents  himself  from  his  troop,  Soldier  absent 

.  '  without  leave. 

battery,  company,  or  detachment,  without  leave  from  his    32  Art.  war. 
commanding  officer,  shall  be  punished  as  a  court-martial 
may  direct.1 

ART.  33.  Any  officer  or  soldier  who  fails,  except  when paf,!denwithout 
prevented  by  sickness  or  other  necessity,  to  repair,  at  the le  I^Xrt.  Wan 
fixed  time,  to  the  place  of  parade,  exercise,  or  other  ren- 
dezvous appointed  by  his  commanding  officer,  or  goes  from 
the  same,  without  leave  from  his  commanding  officer  >  before 
he  is  dismissed  or  relieved,  shall  be  punished  as  a  court- 
martial  may  direct. 

ART.  34.  Any  soldier  who  is  found  one  mile  from  camp,  cs^ 

not  really  act  as  a  court,  but  as  a  board,  and  the  "  appeal  "  authorized  is  practically 
from  one  board  to  another.  But  though  the  regimental  court  has  no  power  to  find 
"  guilty"  or  "not  guilty,"  or  to  sentence,  it  should  come  to  some  definite  opinion  or 
conclusion — one  sufficiently  specific  to  allow  of  its  being  intelligently  reviewed  by 


leave. 
34  Art.  War. 


the  general  court,  if  desired.     (Dig.  J.  A.  Gen.,  35,  par.  1.) 

The  "regimental  court-martial"  under  the  thirtieth  article  of  war  can  not  be  used 
as  a  substitute  for  a  general  court-martial  or  court  of  inquiry,  for  it  can  not  try  an 
officer,  nor  make  an  investigation  for  the  purpose  of  determining  whether  lie  shall 
bo  brought  to  trial.  When,  if  the  soldier's  complaint  should  be  sustained,  the  only 
redress  would  be  a  reprimand  to  the  officer,  the  matter  would  not  be  within  the  juris- 
diction of  this  court.  It  can  only  investigate  such  matters  as  are  susceptible  of  re- 
dress by  the  doing  of  justice  to  the  complainant;  that  is,  when  in  some  way  ho  can 
be  set  right  by  putting  a  stop  to  the  wrongful  condition  which  the  officer  has  caused 
to  exist.  Erroneous  stoppages  of  pay,  irregularity  of  detail,  the  apparent  require- 
ment of  more  labor  than  from  other  soldiers,  and  the  like,  might  in  this  way  be  in- 
vestigated and  the  wrongful  condition  put  an  end  to.  The  court  will  in  such  cases 
record  the  evidence  and  its  conclusions  of  fact,  and  recommend  the  action  to  be  taken. 
The  members  of  the  court  (and  the  judge-advocate)  will  be  sworn  faithfully  to  per- 
form their  duties  as  members  (and  judge-advocate)  of  the  court,  and  the  proceedings 
will  be  recorded,  as  nearly  as  practicable,  in  the  same  manner  as  the  proceedings  of 
ordinary  courts-martial.  (Manual  for  Courts-Martial,  89.) 

1  An  unauthorized  absence  from  quarters  only,  unaccompanied  with  absence  from 
the  post  or  company,  is  not  a  technical  absence  without  leave  in  violation  of  this 
article,  but  an  offense  under  article  62.  (Dig.  Opin.  J.  A.  Gen.,  36.) 

Absence  without  leave  may  consist  in  an  act  of  omission  as  well  as  in  one  of  com- 
mission. Where  an  officer,  detailed  to  command  an  escort  of  prisoners  and  to  deliver 
them  at  a  certain  place,  neglected,  upon  this  service  being  performed,  to  return  with 
reasonable  diligence  to  his  proper  station,  held  that  he  was  chargeable  with  absence 
without  leave,  it  being  the  duty  of  an  officer  to  return  promptly  from  such  a  service 
without  further  orders,  (a)  (Ibid.,  140,  par.  1.) 

Where  an  officer  or  soldier,  on  returning  to  bis  station  after  an  unauthorized  ab- 
sence, is  placed  upon  or  allowed  to  perform  full  duty  by  his  proper  commander,  such 
action,  by  the  custom  of  the  service,  operates  in  general  as  a  waiver  of  the  charge  of 
absence  without  leave,  and  may  ordinarily  be  pleaded  as  a  good  defense  in  the  event 
of  a  trial.  (Ibid.,  par.  2.) 

An  enlisted  man  who  has  absented  himself  from  his  post  or  company  without  au- 
thority is  subjected  to  the  forfeiture  of  pay  and  allowances  prescribed  by  paragraph 

rial  for  his  absence  as  an 


offense.  The  forfeiture  is  a  stoppage  by  operation  of  law  irrespective  of  any  punish 
mcnt  that  may  be  imposed,  and  whether  any  be  imposed  or  not.  Thus  a  soldiei 
acquitted  under  a  charge  of  desertion  is  acquitted  of  the  absence  without  leave 


involved  in  the  charge,  and  can  not  be  punished  therefor;  but  if  he  has  been  absent 
without  leave  in  fact,  he  incurs  the  forfeiture  specified  in  the  regulation .  And  a  sol- 
dier brought  to  trial  for,  arid  convicted  of,  an  absence  without  leave  is  subject  to  the 
forfeiture,  though  none  be  adjudged  in  the  sentence.  Otherwise,  however,  if  the  find- 
ings be  disapproved  as  not  sustained  by  the  testimony.  [But  the  stoppage  incurred 
Tinder  paragraph  126,  Army  Regulations  of  1895,  is  enforced  only  upon  a  conviction 
by  court-martial.]  (Ibid.,  par.  3.) 

The  forfeiture  specified  in  paragraph  133,  Army  Regulations  of  1895,  should  not  be 
enforced  for  absences  of  less  than  one  day,  but  the  soldier  should  be  left  to  be  pun- 
ished by  sentence  of  summary  court.  Thus  where  the  unauthorized  absence  was  for 
but  seven  and  a  half  hours,  a  forfeiture  of  a  day's  pay  would  deprive  the  soldier  of 
pay  for  sixteen  and  a  half  hours  which  he  had  actually  earned.  Held,  therefore,  that 
a  stoppage  of  one  day's  pay  in  such  a  case  was  not  warranted.  (Ibid.,  141,  par.  4.) 

a  See,  as  to  the  general  rule  on  this  subject,  G.  O.  82,  Headquarters  of  Army,  1866; 
also  paragraph  54,  Army  Regulations  of  1889. 


716      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

without  leave  in  writing  from  liis  commanding  officer,  shall 
be  punished  as  a  court-martial  may  direct. 

ART.  35.  Any  soldier  who  fails  to  retire  to  his  quarters 
Art.  War.    or  tent  at  the  beating  of  retreat,  shall  be  punished  accord- 
ing to  the  nature  of  his  offense. 

i?ar'  ART.  tSC.  No  soldier  belonging  to  any  regiment,  troop, 
battery,  or  company  shall  hire  another  to  do  his  duty  for 
him,  or  be  excused  from  duty,  except  in  cases  of  sickness, 
disability,  or  leave  of  absence.  Every  such  soldier  found 
guilty  of  hiring  his  duty,  and  the  person  so  hired  to  do 
another's  duty,  shall  be  punished  as  a  court-martial  may 
direct. 

conniving  at     ART.  37.  Every  non-commissioned  officer  who  connives  at 
ls? Art" vf&r.    such  hiring  of  duty  shall  be  reduced.     Every  officer  who 
knows  and  allows  such  practices  shall  be  punished  as  a 
court-martial  may  direct. 

Dru^kondnty.     ART.  38.  Any  officer  who  is  found  drunk  on  his  guard, 
Feb.  is',  i875!c.  party,  or  other  duty,  shall  be  dismissed  from  the  service. 
FebV27,'  1877,  el  Any  soldier  who  so  offends  shall  suffer  such  punishment  as 
69, v.  19, p. 244.     a  colirt;-inartial  may  direct.     No  court-martial  shall  sen- 
tence any  soldier  to  be  branded,  marked,  or  tattooed.1 
Sentinel  sleep     ART.  39.  Any  sentinel  who  is  found  sleeping  upon  his 

ing  on  post.  ' 

lHeld  that  a  soldier  found  drnnk  when  on  duty  was  properly  convicted  under  this 
article,  though  his  drunkenuess  actually  commenced  before  he  went  on  the  duty,  his 
condition  not  bein<;  perceived  till  some  time  after  he  had  entered  upon  the  same. 
While  it  is  initself  an  often  so  knowingly  to  allow  a  soldier  to  go  on  duty  when  under 
the  influence  of  intoxicating  liquor,  yet  if  a  soldier  is  placed  on  duty  while  partially 
under  this  influence,  but  without  the  fact  being  detected,  and  his  drunkenness  con- 
tinues and  is  discoArered  while  he  remains  upon  the  duty,  he  is  strictly  amenable 
under  this  article,  which  prescribes  not  that  the  party  shall  become  drunk,  but  that 
he  shall  be  "found  drunk"  on  duty,  (a)  (Dig.  Opin.  j.  A.  Gen.,  36,  par.  1.) 

A  charge  of  drunkenness  on  duty  (drill)  held  not  sustained  where  the  party  was 
found  drunk,  not  at  or  during  the  drill,  but  at  the  hour  appointed  for  the  drill,  which, 
however,  by  reason  of  his  drunkenness,  he  did  not  enter  upon  or  attend.  The  charge 
should  properly  have  been  laid  under  article  62.  (Ibid.,  37,  par.  2.) 

An  officer  reporting  in  person  drunk,  upon  his  arrival  at  a  post,  to  the  commander 
of  which  he  had  been  ordered  to  report,  held  chargeable  under  this  article.  And  so 
held  of  an  officer  reporting,  when  drunk,  to  the  post  commander  for  orders  as  officer 
of  the  day,  after  having  been  duly  detailed  as  such.  (Ibid.,  par.  3.) 

But  where  an  officer,  after  being  specially  ordered  to  remain  with  his  company, 
absented  himself  from  it  and  from  his  duty,  and  while  thus  absent  became  and  wiis 
found  drunk,  held  that  he  was  not  strictly  chargeable  with  drunkenness  on  duty 
under  this  article,  but  was  properly  chargeable  with  disobedience  of  orders  and 
unauthorized  absence,  aggravated  by  drunkenness.  (Ibid.,  par.  4.) 

A  post  commander,  while  present  and  exercising  command  as  such,  is  deemed  to 
bo  at  all  times  on  duty  in  the  sense  of  this  article,  and  thus  liable  to  a  charge  under 
the  same  if  he  become  drunk  at  the  post,  (b)  (Ibid.,  par.  5.) 

A  medical  officer  of  a  post,  where  there  areconstantly  sick  persons  under  his  charge 
who  may  at  any  moment  require  his  attendance,  may,  generally  speaking,  be  deemed 
to  be  "on  duty,"  in  the  sense  of  the  article,  during  the  whole  day,  and  not  merely 
during  the  hours  regularly  occupied  by  sick  call,  visiting  the  sick,  or  attending 
hospital.  If  found  drunk  at  any  other  hour  he  may,  in  general,  be  charged  with  au 
offense  under  this  article.  (Ibid.,  par.  6.) 

The  drunkenness  need  not  be  such  as  totally  to  incapacitate  the  party  for  the  duty ; 
it  is  sufficient  if  it  be  such  as  to  materially  impair  the  full  and  free  use  of  his  mental 
or  physical  abilities,  (c)  It  is  not  a  sufficient  defense  to  a  charge  of  drunkenness  on 

a  Note' the  emphatic  order  of  the  President  in  regard  to  violations  of  this  article, 
published  in  G.  O.  104,  Headquarters  of  Army,  1877.  See  cases  in  G.  .  11,  Depart- 
ment of  Louisiana,  1869 ;  G.  C.  M.  0. 113,  Department  of  the  Missouri,  3873. 

6 That  the  article  is  not  limited  in  its  application  to  mere  duties  of  detail,  but 
embraces  all  descriptions  and  occasions  of  duty,  see  the  interpretation  of  the  same 
as  declared  in  G.  O.  7,  War  Department,  1856,  and  affirmed  in  G.  O.  5,  ibid.,  1857.  The 
case  in  the  latter  order,  indeed,  was  a  case  of  drunkenness  while  on  duty  as  a  post 
commander.  See  another  case  of  the  same  character  in  G.  C.  M.  O.  21,  Department  of 
the  Missouri,  1870,  and  the  remarks  of  Major- General  Schofield  thereon,  and  compare 
G.  C.  M.  0. 9,  War  Department,  1875. 

c  See  G.  C.  M.  O.  33,  War  Department,  1875;  also  G.  C.  M.  O.  21,  Department  of  the 
Missouri,  1870;  G.  0. 53, 98,  Army  of  the  Potomac,  1862;  G.  O.  48,  Department  of  Vir- 
ginia and  North  Carolina,  1864 ;  G.  O.  33,  Department  of  the  Platte,  1871. 


THE    MILITARY    LAWS   OF    THE   UNITED   STATES.  717 

post,  or  who  leaves  it  before  lie  is  regularly  relieved,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. l 

ART.  40.  Any  officer  or  soldier  who  quits  his  guard,  pla-   Quitting  guard, 

,.  ?.  2>  etc.,    without 

toon,  or  division,  without  leave  irom  his  superior  officer,  leave. 

'  ..  40  Art.  War. 

except  in  a  case  of  urgent  necessity,  shall  be  punished  as  a 
court-martial  may  direct. 

ART.  41.  Any  officer  who,  by  any  means  whatsoever,    Faiseaiarms. 
occasions  false  alarms  in  carnp,  garrison,  or  quarters,  shall 
suffer  death,  or  such  other  punishment  as  a  court-martial 
may  direct. 

ART.  42.  Any  officer  or  soldier  who  misbehaves  himself 
before  the  enemy,  runs  away,  or  shamefully  abandons  any 
fort,  post,  or  guard,  which  he  is  commanded  to  defend,  or 
speaks  words  inducing  others  to  do  the  like,  or  casts  away 
his  arms  or  ammunition,  or  quits  his  post  or  colors  to  plun- 
der or  pillage,  shall  suffer  death,  or  such  other  punishment 
as  a  court-martial  may  direct.2 

duty  to  show  that  the  accused,  though  under  the  influence  of  liquor,  contrived  to 
get  through  and  somehow  perform  the  duty. 

A  finding,  under  a  charge  of  a  violation  of  this  article,  of  not  guilty  of  being 
"found  drunk,"  but  guilty  of  being  "found  under  the  influence  of  liquor"  (or  by 
which  the  latter  Avords  are  substituted  in  the  specification  for  the  former— see  Find- 
ing, sec.  4),  recommended  to  be  disapproved,  as  making  a  distinction  too  fine  for  a 
practical  administration  of  justice,  and  establishing  a  precedent  which  must  tend  to 
defeat  the  purpose  of  the  article,  (a)  (Ibid.,  38,  par.  7.) 

It  is  immaterial  whether  the  drunkenness  be  voluntarily  induced  by  spirituous 
liquor  or  by  opium  or  other  intoxicating  drug;  in  either  case  the  offense  may  be 
equally  complete,  (b)  (Ibid.,  par.  8.) 

Drunkenness  not  on  duty,  or  when  off  duty,  when  amounting  to  a  "  disorder, I: 
should  be  charged  under  article  62,  unless  (in  a  case  of  an  officer)  committed  under 
such  circumstances  as  to  constitute  an  ofiense  under  article  61.  (Ibid.,  par.  9.) 

No  punishment  i'xcept  dismissal  can  legally  be  imposed  upon  an  ofiicer  on  a  con- 
viction of  the  offense  made  punishable  by  tins  article.  A  sentence  imposing,  with 
dismissal,  any  further  punishment,  as  imprisonment  or  forfeiture  of  pay,  is,  as  to 
such  additional  penalty,  unauthorized  and  inoperative,  and  should  so  far  be  dis- 
approved. (Ibid.,  par.  10.) 

A  soldier  drunk  on  duty  otherwise  than  as  specified  in  General  Orders  21  of  1891, 
II,  commits  an  offense  "not  herein  provided  for  "  (see  ibid.,  IV),  and  is  "punishable 
as  authorized  by  the  Articles  of  War  and  the  custom  of  the  service,"  at  the  discre- 
tion of  the  court-martial.  (Ibid.,  39,  par.  11.) 

]It  is  no  defensj  to  a  charge  of  "  sleeping  on  post "  that  the  accused  had  been  pre- 
viously overtasked  by  excessive  guard  duty,  (c)  or  that  an  imperfect  discipline 
prevailed  in  the  command  and  similar  offenses  had  been  allowed  to  pass  without 
notice;  (d)  or  that  the  accused  was  irregularly  or  informally  posted  as  a  sentinel. (e) 
Evidence  of  such  circumstances,  however,  may  in  general  be  received  in  extenuation 
of  the  offense;  or,  after  sentence,  may  form  the  basis  for  a  mitigation  or  partial 
remission  of  the  punishment.  (/)  An  officer  who  places  or  continues  a  soldier  on 
duty  as  a  sentinel  when,  from  excessive  fatigue,  infirmity,  or  other  disability,  he  ia 
incompetent  to  perform  the  important  duties  of  such  a  position  will  ordinarily  ren- 
der himself  liable  to  charges,  (g)  (Ibid.,  39.) 

2Misbehavior  before  the  enemy  may  be  exhibited  in  the  form  of  cowardice,  or  it 
may  consist  in  a  willful  violation  of  orders,  gross  negligence,  or  inefficiency,  an  act 
of  treason  or  treachery,  etc.  (h)  It  need  not  be  committed  in  the  actual  sight  of  the 

a  Compare  G.  C.  M.  0. 33,  War  Department,  1875. 

b  Simmons,  sec.  157;  and  see  Hough  (Precedents),  208;  James's  Precedents,  60. 

c  See  G.  0. 74,  Army  of  the  Potomac,  1862. 

d  G.  0. 74,  Army  of  the  Potomac,  1862. 

eG.  O.  10,  Middle  Military  Department,  1865;  G.  0. 166,  Department  of  the  South, 
1864. 

/See  G.  0. 10,  62,  Department  of  Virginia  and  North  Carolina,  1863 ;  G.  O.  2,  North- 
ern Department,  1865 ;  G.  O.  67,  Department  of  Washington,  1866 ;  G.  0. 9,  Department 
of  the  South,  1870;  G.  C.  M.  0. 44,  Department  of  Texas,  1875. 

grSee  G.  0. 15,  Army  of  the  Potomac,  1861;  G.  O.  62,  Department  of  Virginia  and 
North  Carolina,  1863;  G.  C.  M.  0. 59,  Department  of  Texas,  1872;  G.  C.  M.  0.  80,  De- 
partment of  the  Missouri,  1875. 

ft  The  phases  which  this  offense  may  assume  are  well  illustrated  in  cases  published 
in  the  following  general  orders :  G.  0. 5,  War  Department,  1857;  G.  0. 183,  ibid.,  1862; 
G.  0. 18, 134, 146, 189, 204, 229,  282,  317,  ibid.,  1863 ;  G.  O.  27, 64,  ibid.,  1864;  G.  C.  M.  0. 90, 
114, 272,  279,  ibid.,  1864;  G.  0. 53, 1, 107, 124, 126, 134, 191,  421,  ibid.,  1865. 


718  THE   MILITARY    LAWS    OF    THE    UNITED    STATES 

Compelling  a     ART.  43.  If  any  commander  of  any  garrison,  fortress,  or 

43  Art.  war.    pOSt  is  compelled,  by  the  officers  and  soldiers  under  his 

command,  to  give  up  to  the  enemy  or  to  abandon  it,  the 

officers  or  soldiers  so  offending  shall  suffer  death,  or  such 

other  punishment  as  a  court-martial  may  direct. 


enem 


watchword*  *  *  s  ^RT-  ^'  Any  person  belonging  to  the  armies  of  the 
44  Art.  war.  United  States  who  makes  known  the  watchword  to  any 
person  not  entitled  to  receive  it,  according  to  the  rules  and 
discipline  of  war,  or  presumes  to  give  a  parole  or  watch- 
word different  from  that  which  he  received,  shall  suffer 
death,  or  such  other  punishment  as  a  court-martial  may 
direct. 

i?myeving  the     ART.  45.  Whosoever   relieves  the  enemy  with  money, 
46  irt.  War.    victuals,  or  ammunition,  or  knowingly  harbors  or  protects 
an  enemy,  shall  suffer  death,  or  such  other  punishment  as 
a  court-martial  may  direct.1 

enemy,  but  the  enemy  must  bo  in  the  neighborhood,  and  the  act  of  offense  have  rela- 
tion to  some  movement  or  service  directed  against  the  enemy,  or  growing  out  of  a 
movement  or  operation  on  his  part.  It  may  be  committed  in  an  Indian  war  equally 
as  in  a  foreign  or  civil  war.  (a)  (Ibid.,  40,  par.  1.) 

The  term  "his  arms  or  ammunition"  does  not  refer  to  arms,  etc.,  which  are  the 
personal  property  of  the  soldier,  but  means  such  as  have  been  furnished  to  him  by 
the  proper  officer  for  use  in  the  service.  (&)  The  term  is  to  be  construed  in  connection 
with  the  further  similar  expression  "  his  post  or  colors."  (Ibid.,  40,  par.  2.) 

1  In  view  of  the  general  term  of  description  in  this  and  the  succeeding  article, 
"whosoever,"  it  was  held,  during  the  late  war,  by  the  Judge-  Advocate-General  and 
by  the  Secretary  of  War,  (c)  and  has  been  held  later  by  the  Attorney-General,  (rf) 
that  civilians,  equally  with  military  persons,  were  amenable  to  trial  and  punishment 
by  court  martial  under  either  article,  (e)  (Dig.  Opin.  J.  A.  Gen.  ,40,  par.  1.)  But  the 
sounder  construction  would  seem  to  be  that,  as  the  Articles  of  War  are  a  code 
enacted  for  the  government  of  the  military  establishment,  they  relate  only  to  per- 
sons belonging  to  that  establishment  unless  a  din'erent  intent  should  be  expressed 
or  otherwise  made  manifest.  No  such  intent  is  so  expressed  or  made  manifest. 


Persons  not  belonging  to  the  military  establishment  may  bo  proceeded  against  for 
the  acts  mentioned  in  the  article,  but  it  is  by  virtue  of  the  power  of  another  juris- 
diction, namely,  martialjaw;  and  martial  law  does  not  owe  its  existence  to  legisla- 


tion but  to  necessity.  The  scope  of  these  articles  under  the  legislation  of  3776, 
apparently  extending  their  application  to  civilians,  seems  to  have  become  modified 
on  the  adoption  of  the  Constitution.  (Opin.  J,  A.  G.) 

During  the  late  war  all  inhabitants  of  insurrectionary  States  were  prima  facie 
enemies  in  the  sense  of  this  and  the  succeeding  article.  (/)  A  citizen  of  an  insurgent 
State  who  entered  the  United  States  military  service  became  of  course  no  longer  an 
enemy.  So  held  of  a  lieutenant  of  the  First  East  Tennessee  Cavalry.  (Dig.  Opiu. 
J.  A.  Gen.,  41,  par.  2.) 

It  is  no  less  a  relieving  an  enemy  under  this  article  that  the  money,  etc.,  furnished 

a  See  case  in  G.  0. 5,  War  Department,  1857,  in  which  a  soldier  was  sentenced  to  be 
hung  upon  conviction  of  misbehavior  before  the  enemy  on  the  occasion  of  a  fight 
with  Indians. 

&See  Samuel,  592;  Hough,  Practice,  336. 

c  See  G.  0. 67,  War  Department,  1861 ;  also  the  following  orders  of  that  Department 
publishing  and  approving  sentences  of  civilians  tried  and  convicted  under  these 
articles:  G.  O.  76,  175,  250,  371,  of  1863:  G.O.51,  of  1864:  G.  C.  M.  0. 106, 157,  of  1864 : 
G.  C.  M.  0. 260,  671,  of  1865. 

d!13  Opin.  Att.  Gen.,  472. 

e  Admitting  this  construction  to  be  warranted  so  far  as  relates  to  acts  committed 
on  the  theater  of  war  or  within  a  district  under  martial  law,  it  is  to  be  noted  that  it 
is  the  effect  of  the  leading  adjudged  cases  to  preclude  the  exercise  of  the  military 
jurisdiction  over  this  class  of  offenses  when  committed  by  civilians  in  places  not 
under  military  government  or  martial  law.  See,  especially,  Ex  parte  Milligan,  4 
Wallace-,  121-123 ;  Jones  t>.  Seward.,  Barb.563. 

/See  the  opinion  of  the  United  States  Supreme  Court  (frequently  since  reiterated, 
in  substance)  as  given  by  Grier,  J.,  in  the  "Prize  Cases,"  2  Black, '666  (1862) ;  and  by 
Chase,  C.  J.,  in  the  cases  of  Mrs.  Alexander's  Cotton  and  The  Venice,  2  Wallace,  274, 
418  (1864).  In  the  latter  case  the  Chief  Justice  observes :  "  The  rule  which  declares 
that  war  makes  all  the  citizens  or  subjects  of  one  belligerent  enemies  of  the  Govern- 
ment and  of  all  the  citizens  or  subjects  of  the  other,  applies  equally  to  civil  and  to 
international  wars."  That  an  insurrectionary  State  was  no  less  "enemy's  country, " 
though  in  the  military  occupation  of  the  United  States,  with  a  military  governor 
appointed  by  the  President,  see  opinion  by  Field,  J.,  in  Colemau  v.  Tennessee,  7 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  719 


ART.  46.  Whosoever  holds  correspondence  with,  or  gives 
intelligence  to,  the  enemy,  either  directly  or  indirect!  y,    **  Art.  War. 
shall  suffer  death,  or  such  other  punishment  as  a  court- 
martial  may  direct.1 

ART.  47.  Any  officer  or  soldier  who,  having  received 
pay,  or  having  been  duly  enlisted  in  the  service  of  the  18^  $^9,  isao,  c. 
United  States,  deserts  the  same,  shall,  in  time  of  war,  suf- 
fer death,  or  such  other  punishment  as  a  court-martial  may 
direct  ;  and  in  time  of  peace,  any  punishment,  excepting 
death,  which  a  court-martial  may  direct.2 

is  exchanged  for  some  commodity,  as  cotton,  valuable  to  the  other  party.  (Ibid., 
par.  3.) 

The  act  of  "relieving  the  enemy"  contemplated  by  this  article  is  distinguished 
from  that  of  trading  with  the  enemy  in  violation  of  the  laws  of  war,  the  former 
being  restricted  to  certain  particular  torms  of  relief,  while  the  latter  includes  every 
kind  of  commercial  intercourse  not  expressly  authorized  by  the  Government.  (Ibid., 
par.  4.) 

1Held  that  the  offense  of  holding  correspondence  with  the  enemy  was  completed 
by  writing  and  putting  in  progress  a  letter  to  an  inhabitant  of  an  insurrectionary 
State  during  the  late  war,  it  not  being  deemed  essential  to  this  offense  that  the 
letter  should  reach  its  destination,  (a)  (Ibid.,  42,  par.  1.) 

It  is  essential,  however,  to  the  offense  of  giving  intelligence  to  the  enemy  that 
material  information  should  actually  bo  communicated  to  him  ;  the  communication 
may  be  verbal,  in  writing,  or  by  signals.  (Ibid.,  par.  2.) 

2Tliat  a  soldier  has  been  charged  with  a  desertion  is  no  evidence  that  he  has  com- 
mitted the  offense.  Thus,  held  that  the  mere  fact  that  a  soldier,  absent  without  au- 
thority, had  been  arrested  and  returned  to  his  regiment  as  a  deserter,  was  no  proof 
whatever  of  the  offense  charged.  So,  held  that  a  mere  entry  on  a  morning  report 
book,  descriptive  roll,  or  other  official  statement  or  return,  that  a  soldier  deserted  on 
a  certain  day,  was  not  legal  evidence  of  a  desertion  by  him,  but  was  evidence  only 
that  he  had'beencftarv/erf  with  desertion.  (&)  So,  a  report  from  the  Adjutant-General's 
Office  containing  extracts  from  the  muster  rolls  of  a  regiment  on  which  a  soldier  of  the 
same  was  noted  as  having  deserted  on  a  certain  date,  held  incompetent  evidence  of 
the  fact  of  desertion,  upon  a  trial  of  the  soldier  for  that  offense.  (c)  Similarly  held 
that  the  mere  statement  of  a  iirst  sergeant,  given  as  testimony  on  the  trial  of  a  sol- 
dier of  his  company  charged  with  desertion,  that  the  accused  "deserted"  at  a  cer- 
tain time  and  place,  was  insufficient  as  proof  of  the  offense  charged,  being,  indeed, 
but  an  assertion  of  a  conclusion  of  law.  In  such  cases  it  is  for  the  witness  simply 
to  state  the  facts  and  circumstances,  so  far  as  known  to  him,  attending  the  act 
charged,  it  being  the  province  of  the  court  alone  to  arrive  at  the  conclusion  that 
the  offense  has  been  committed.  To  convict  a  deserter  upon  an  accusation  merely, 
however  formally  and  officially  the  same  may  be  made,  would  be  as  unwarranted  in 
law  as  it  would  be  unjust  in  fact.  (Dig.  Opin.  J.  A.  Gen.,  339,  par.  3.) 

The  nature  of  the  offense  of  desertion  is  well  illustrated  in  cases  of  escape.  The 
mere  fact  that  a  soldier,  while  awaiting  trial  or  sentence,  or  while  under  sentence 
(and  not  discharged  from  the  service),  escapes  from  his  confinement,  is  not  proof  of 
a  desertion  on  his  part,  since  he  may  have  had  in  view  some  minor  object,  such  as 
the  procuring  of  liquor,  etc.  (d)  But  an  escape,  followed  by  a  considerable  absence, 
especially  if  the  soldier  is  obliged  to  be  forcibly  apprehended,  is  strong  presumptive 
evidence  of  the  existence  of  the  intent  necessary  to  constitute  the  crime.  So, 
though  the  absonce  involved  may  be  comparatively  brief,  the  circumstances  accom- 
panying the  escape  or  attending  the  apprehension  may  be  such  as  to  justify  an 
equally  strong  presumption.  An  escape,  with  intent  not  only  to  evade  confinement 
but  to  quit  the  service,  while  the  party  is  held  awaiting  proceedings  for  desertion, 
is  of  course  a  second  or  additional  desertion. 

As  to  the  nature  of  the  offense  which  may  be  involved,  there  is  properly  no  sub- 
stantial distinction  between  an  escape  while  awaiting  trial  or  sentence  and  an 
escape  while  in  confinement  under  sentence.  An  escape,  indeed,  from  an  imprison- 
ment imposed  by  sentence  would  probably  be  more  likely  to  be  characterized  by  an 
animus  non  revertendi  than  an  escape  from  a  merely  preliminary  confinement  in 
arrest.  So  an  escape  from  confinement  while  awaiting  trial  upon  a  grave  charge, 
which  must  entail  upon  conviction  a  severe  punishment,  would  naturally  be  more 
generally  so  characterized  than  an  escape  from  an  arrest  upon  a  charge  of  inferior 
consequence. 

Undoubtedly,  in  the  great  majority  of  cases,  escape  is  desertion  ;  the  precedents, 
however,  show  that  it  is  not  necessarily  so  ;  and,  upon  the  mere  fact  alone  that  a 


aCompare  Hensey's  Case,  1  Burrow,  642;  Stone's  Case,  6  Term,  527;  Samuel,  580. 

6  Compare  G.  C.  M.  0. 33,  Department  of  the  Missouri,  1875. 

cCompare  Hanson  v.  S.  Scituate,  115  Mass.,  336. 

dSee  a  case  of  this  nature  (an  escaping  in  order  to  obtain  liquor)  in  G.  O.  32, 
Department  of  the  South,  1873 ;  and  compare  the  case  in  G.  O.  87,  Department  of  the 
South,  1872,  in  which  a  conviction  of  desertion  is  disapproved  on  the  ground  that 
the  evidence  showed  "  merely  an  escape  from  the  guardhouse,  without  intention  to 
leave  the  service  or  the  vicinity  of  the  post."  And  see  in  this  connection  Samuel, 
324,  where  to  be  "discovered,"'  after  a  short  absence,  "in  the  pursuit  of  some  acci- 
dental temporary  object,  thoiigh  perhaps  otherwise  illicit,"  is  instanced  as  not 
indicating  an  intent,  by  the  offender,  "to  sever  himself  from  the  service." 


720 


THE   MILITARY    LAWS    OP    THE   UNITED    STATES. 


Deserter  shall     ART.  48.  Every  soldier  who  deserts  the  service  of  the 
sejln.ii,  m?  c.  United  States  shall  be  liable  to  serve  for  such  period  as 

14,  s.  16,  v.  2,  p. 

673 ;  Jan.  29, 1812, 

c.  16,  s.  127  v.  2,  p.  soldier  has  liberated  himself  from  military  custody,  it  is  not  just  to  convict  him  of 

796.  having  designed  to  dissolve  his  contract  and  permanently  abandon  the  military  serv- 

48  Art.  War.      ice.    Of  course,  an  escape  from  legal  military  custody  is  always  an  offense,  and  the 

soldier  who  has  escaped  may  (where  his  act  does  not  amount  to  a  desertion)  he 

brought  to  trial  for  such  offense  as  "conduct  to  the  prejudice  of  good  order  and 

military  discipline." 

It  need  hardly  be  added  that  an  escape  from  imprisonment  under  sentence,  effected 
by  a  party  who  has  been  dishonorably  discharged  under  the  same  sentence,  can  not 
constitute  a  desertion  or  other  offense,  the  party  at  the  time  of  escape  being  no 
longer  in  the  military  service.  (Ibid.,  340,  par.  4.) 

Held  to  be  no  defense  to  a  charge  of  desertion  that  the  accused,  at  the  time  of  the 
enlistment  which  he  is  charged  with  having  abandoned,  was  an  unapprehended 
deserter  from  the  Army,  an  enlistment  of  a  deserter  being  not  void  but  voidable 
only.  (Ibid.,  341,  par.  5.) 

It  is  no  defense  to  a  charge  of  desertion  that  the  soldier  was  induced  to  abandon 
the  service  by  reason  of  ill  treatment,  want  of  proper  food,  etc. ,-  such  circumstances 
can  only  palliate,  not  excuse,  the  offense  committed.  So,  in  a  case  of  a  Swiss,  who, 
having  enlisted  in  our  Army,  deserted  after  two  years  of  service,  held  that  it  was 
no  defense  (though,  under  the  circumstances,  matter  of  extenuation)  that  his  act 
had  been  induced  by  an  intense  nostalgia  or  maladie  du  pays.  So,  held,  in  a  case  of 
a  desertion  by  a  German,  that  the  fact  that  he  had  received  a  notification  from  the 
military  authorities  of  the  North  German  Empire  to  report  at  home  for  military 
duty  under  the  penalty  of  being  considered  as  a  deserter  from  the  German  army, 
constituted  no  defense  to  a  desertion  committed  by  him  from  our  service,  (a)  (Ibid., 

It  is,  however,  a  complete  answer  to  a  charge  of  desertion  before  a  court-martial 
that  the  accused  has  previously  been  ' '  restored  to  duty  without  trial, ' '  as  sanctioned 
by  paragraph  128,  Army  Regulations  of  1889  (pai'agraph  132  of  1895),  provided  he  has 
been  so  restored  by  competent  authority,  i.  e.,  the  commander  who  would  have  been 
authorized  to  convene  a  general  court  for  his  trial ;  otherwise,  however,  when  so 
restored  by  a  superior  not  duly  authorized.  (Ibid.,  par.  7.) 

KEWARDS. 

The  reward  Of  $10  made  payable  by  paragraph  124,  Army  Regulations,  1895,  is  not 
due  merely  on  the  apprehension  of  a  deserter;  he  must  also  be  delivered  "  to  the 
proper  military  authority  at  a  military  station,  or  at  some  convenient  point  as  near 
thereto  as  can'be  agreed  upoa."(&)  The  fact  of  the  offer  of  a  reward  for  the  arrest  of 
a  deserter  does  not  authorize  a  breach  of  the  peace  or  commission  of  an  illegal  act  in 
making  the  arrest,  (c)  (Ibid,  343,  par.  12.) 

The  amount  of  the  reward— to  cite  from  G.  0. 325  of  1863— is  in  full ' '  for  all  expenses 
incurred  in  apprehending,  securing,  and  delivering  a  deserter."  Disbursements  made 
by  a  civilian,  where  no  arrest  is  effected,  are  at  his  own  risk,  and  can  not  legally  be 
reimbursed  by  the  military  authorities.  (Ibid,  344,  par.  13.) 

The  legal  liability  imposed  upon  the  soldier  by  paragraph  124,  Army  Regulations, 
to  have  the  amount  of  the  award  stopped  against  his  pay,  is  quite  independent  of 
the  punishment  which  may  be  imposed  upon  him  by  sentence  of  court-martial  on 
conviction  of  the  desertion.  Such  stoppage  is  incident  upon  the  conviction  (d)  and 
need  not  be  directed  in  the  sentence ;  courts-martial,  indeed,  have  sometimes  assumed 
to  impose  it,  like  an  ordinary  forfeiture  of  pay,  but  its  insertion  in  the  sentence  adds 
nothing  to  its  legal  effect.  (Ibid,  par.  14.) 

Where  a  soldier,  charged  with  desertion,  is  acquitted  ,  or  where,  if  convicted,  his 
conviction  is  disapi^roved  by  the  competent  reviewing  authority,  he  can  not  legally 
be  made  liable  for  the  amount  of  a  reward  paid  orpayaule  for  his  arrest  as  a  deserter, 
since  in  such  cases  he  is  not  a  deserter  in  law.  (Ibid,  par.  15.) 

Where  a  soldier,  for  whose  apprehension  as  a  supposed  deserter  the  legal  reward 
has  been  paid,  is  subsequently  brought  to  trial  upon  a  charge  of  desertion,  and  is 
found  guilty  not  of  desertion  but  only  of  the  lesser  and  distinct  offense  of  absence 
without  leave,  he  clearly  can  not  legally  be  held  liable  for  the  reward  by  a  stoppage 
of  the  amount  against  his  pay.  In  such  a  case,  the  instrumentality  resorted  to  by 
the  United  States  for  determining  the  nature  of  his  offense — the  court-martial — 
having  pronounced  that  it  was  not  desertion,  the  Government  is  bound  by  the  result, 
and  to  visit  upon  him  a  penalty  to  which  a  deserter  only  can  be  subject  would  be 

a  As  to  the  principle  of  the  right  of  expatriation,  as  asserted  in  our  public  law, 
see  section  1999,  Revised  Statutes. 

b  The  actual  payment  of  the  compensation  in  such  cases  is  authorized  by  the 
annual  army  appropriations  acts,  which,  in  appropriating  for  the  incidental  expenses 
of  the  Quartermaster  Department,  include  as  an  item  "for  the  apprehension,  secur- 
ing, and  delivering  of  deserters,  and  the  expenses  incident  to  their  pursuit." 

c  See,  in  this  connection,  Clay  v.  United  States,  Devereux,  25,  in  which  an  officer, 
who,  under  the  orders  of  a  superior,  had,  without  previously  procuring  proper 
authority  to  enter  and  search  from  a  civil  magistrate,  broken  into  a  dwelling  house 
for  the  purpose  of  securing  the  arrest  of  certain  deserters,  was  held  to  have  com- 
mitted an  unjustifiable  trespass,  and  his  claim  to  be  reimbursed  by  the  United  States 
for  the  amount  of  a  judgment  recovered  against  him  on  account  of  his  illegal  act 
was  disallowed  by  the  Court  of  Claims.  Held  by  the  Attorney-General  Oct.  12, 1894 
(confirming  the  views  of  the  Judge-Advocate-General),  "that  the  right  to  forcibly 
enter  into  private  houses,  as  asserted  by  the  Adjutant-General's  circular  No.  6,  of 
1885,  does  not  exist."  And  see  par.  2,  of  Circ.  No,  12,  H.  Q.  A.,  1894,  revoking  Circ.  No. 
6,  of  1885. 

d  See,  to  a  similar  effect,  the  recent  opinion  of  the  Attorney-Geoera.1  referred  to  iu 
the  next  note. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  721 

shall,  with  the  time  he  may  have  served  previous  to  his 
desertion,  amount  to  the  full  term  of  his  enlistment;  and 
such  soldier  shall  be  tried  by  a  court  martial  and  punished, 


grossly  arbitrary  and  wholly  unauthorized.  Moreover,  such  action  would  be  directly 
at  variance  with  the  terms  of  paragraph  124  of  the  Army  Regulations,  which  fixes 
such  liability  upon  the  soldier  tried  in  the  event  only  of  his  con  viction  of  desertion,  (a) 
unless,  indeed,  the  sentence  of  the  court  expressly  forfeits  the  amount.  (6)  (Ibid, 
par.  16.) 

\Vhere  a  civil  official,  having  made  an  arrest  of  a  deserter,  concealed  him  from  the 
military  authorities,  and  afterwards  permitted  or  connived  at  his  escape,  recom- 
mended that  the  Attorney  General  be  requested  to  instruct  the  proper  United  States 
district  attorney  to  initiate  proceedings  under  section  5455.  Revised  Statutes.  (Ibid., 
345,  par.  17.) 

Every  desertion  includes  an  absence  without  leave.  Upon  a  trial  for  desertion 
the  accused  is  tried  also  for  the  absence  without  leave  involved  in  the  offense 
charged,  (c)  If  acquitted,  without  reservation,  of  the  desertion,  he  is  acquitted  also 
of  the  lesser  offense.  If  convicted,  as  he  may  be  (see  FINDING,  section  8),  of  the 
lesser  offense  only,  under  a  charge  of  the  greater,  he  is  acquitted  in  law  of  the 
latter.  (Ibid.,  par.  18.) 

The  right  of  the  United  States  to  arrest  and  bring  to  trial  a  deserter  is  paramount 
to  any  right  of  control  over  him  by  a  parent  on  the  ground  of  his  minority,  (d)  (Ibid., 
par.  19.) 

Enlisting  in  the  enemy's  army  by  prisoner  of  war  is  desertion,  unless  submitted 
to  as  a  last  resort  to  save  life  or  escape  extreme  suffering,  or  to  obtain  freedom.  Thus, 
held  in  a  case  of  a  United  States  soldier  who  entered  the  service  of  the  enemy  from 
Audersonville,  Ga.,  in  the  late  war,  that  the  burden  of  proof  was  on  him  to  establish 
that  he  resorted  to  such  enlistment  with  design  of  effecting  his  escape  and  rejoining 
his  own  army ;  and  that  his  abandoning  such  enlistment  and  coming  within  our 
lines  at  the  first  opportunity  was  material  evidence  of  such  a  design.  (Ibid.,  par.  20.) 

A  soldier  who  had  been  extradited  from  Mexico  solely  on  a  charge  of  theft,  held 
not  liable  to  trial  as  a  deserter;  the  principle  that  a  person  extradited  on  account 
of  a  certain  alleged  offense  is  exempt  from  trial  on  any  other  criminal  offense  (e) 
being  deemed  applicable  where  the  other  offense  is  a  military  one.  A  deserter  from 
our  Army  can  not,  in  the  absence  of  any  international  convention  allowing  it, 
legally  be  arrested  as  such  in  Mexico  and  brought  thence  into  Texas.  (Ibid.,  346, 
par.  21.) 

The  amenability  to  trial  of  a  deserter  from  an  enlistment  in  the  Army  is  not 
affected  by  the  fact  that  when  he  enlisted  he  was  a  deserter  from  the  Marine  Corps. 
(Ibid.,  par. 22.) 

Held  that  a  deserter  from  a  volunteer  regiment  was,  after  the  disbandment  of  the 
volunteer  army,  no  longer  amenable  to  the  military  jurisdiction,  having  become 
thereupon  a  civilian.  (Ibid.,  par.  23.) 

A  civil  employee  of  the  Quartermaster  Department  does  not  become  liable  as  a 
deserter  by  abandoning  his  employment.  (Ibid.,  par.  24.) 

The  fact  that  a  soldier  has  been  dropped  from  the  rolls  as  a  deserter  is  not  legal 
evidence  to  prove  the  fact  of  desertion  on  a  trial  for  that  offense.  (Ibid.,  par.  25.) 

To  entitle  a  person  (under  paragraph  122,  Army  Regulations  of  1889 — paragraph 
124  of  1895)  to  the  reward  for  the  arrest  of  a  deserter,  (/)  the  party  arrested  must  be 
still  a  soldier.  Though  at  the  time  of  the  arrest  the  period  of  his  term  of  enlistment 
may  have  expired,  or  he  may  be  under  sentence  of  dishonorable  discharge,  yet  if  he 
has  not  been  discharged  in  fact,  the  official  duly  making  the  arrest,  etc.,  on  account 
of  a  desertion  committed  before  the  end  of  his  term,  becomes  entitled  to  the  payment 
of  the  reward  specified  in  the  regulations.  Similarly  held,  where  the  soldier,  arrested 
when  at  large  as  a  deserter,  had  been  sentenced  to  confinement  (without  discharge) 
and  had  escaped  therefrom.  (Ibid.,  par.  26.) 

The  soldier  arrested  must  be  a  deserter  and  legally  liable  as  such.  If  he  has  been 
judicially  determined  to  be  not  a  deserter,  as  where  he  has  been  convicted  of  absence 
without  leave  only  (see  paragraph  125,  Army  Regulations  of  1889— paragraph  127  of 
1895),  or  if,  in  view  of  the  limitation  of  the  one  hundred  and  third  article,  he  has  a 
legal  defense  to  a  prosecution  for  desertion  (G.  0. 22  of  1893),  the  reward  is  not  paya- 
ble for  his  apprehension.  (Ibid.,  347,  par.  27.) 

Where  the  soldier  when  arrested  had  been  absent  but  three  days,  and  was  still  In 
uniform,  and  had  not  been  reported  or  dropped  as  a  deserter,  and  his  company  com- 
mander had  not  tlio  "conclusive  evidence"  ofhis  "intention  not  to  return,"  referred 
toiu  paragraph  132,  Army  Regulations  of  1889  (paragraph  133  of  1895),  held  that  there 
was  not  sufficient  evidence  that  he  was  a  deserter  to  justify  the  payment  of  the 
reward  for  his  arrest  and  delivery.  (Ibid.,  par.  28.) 

The  arrest  made  must  be  a  legal  one.  Thus  held  that  the  reward  was  not  payable 
for  an  arrest  made  on  the  soil  of  Mexico,  involving  a  violation  of  the  territorial 
rights  of  that  sovereignty.  An  act  done  in  violation  of  law  can  not  be  the  basis  of 
a  legal  claim.  (Ibid.,  par.  29.) 

Where  the  deserter  was  not  arrested  by,  but  surrendered  himself  to,  the  civil  offi- 
cial, who  in  good  faith  took  him  into  custody  and  securely  held  and  duly  delivered 


a  This  conclusion  was  concurred  in  by  the  Attorney-General  in  16  Opins.  474. 

6SeeG.O.38of  1890. 

c  See  13  Opins.  Att.  Gen.,  460. 

din  re  Coseuow,  37  Fed. ,668;  In  re  Kaufman,  41  Fed..  876.  And  compare  In  re 
Morrissey,  137  U.  S.,157. 

eU.  S.  v.  Rauscher,  119  U.  S.,  407. 

/The  Army  Regulations,  so  far  as  it  fixes  the  amount  of  the  "reward,"  has  been 
superseded  by  the  provision  of  the  recent  army  appropriation  acts  of  August  6, 
1894,  and  February  12,  1895,  to  the  effect  that  the  sum  paid  shall  not  be  "  greater  than 
ten  dollars.'* 

1919 46 


722  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

although  the  term  of  his  enlistment  may  have  elapsed 
previous  to  his  being  apprehended  and  tried.1 
Desertion    by     ART.  49.  Any  officer  who,  having  tendered  his  resigna- 

resignation. 

Aug.  5, 1861,  c.  tion,  quits  his  post  or  proper  duties,  without  leave,  and 
sib.8'  P'  with  intent  to  remain  permanently  absent  therefrom,  prior 

to  due  notice  of  the  acceptance  of  the  same,  shall   be 

deemed  and  punished  as  a  deserter. 
Enlisting  in     ART.  50.  No  non-cominissioned  officer  or  soldier  shall 

other     regiment  . 

without  dis- enlist  himself  in  any  other  regiment,  troop,  or  company, 

c  loSt.  War.    without  a  regular  discharge  from  the  regiment,  troop,  or 

company  in  which  he  last  served,  on  a  penalty  of  being 


him,  advised  that  there  had  been  a  substantial  apprehension  (for  the  purpose  of  re- 
ward) and  that  the  reward  was  properly  payable.  [See  Circular  No.  1  (H.  A.),  1886.1 
(Ibid.,  par.  30.) 

The  delivery  should  be  personal  and  manual  on  the  part  of  the  civil  official. 
Where  a  soldier  who  had  deserted  was  sentenced  to  a  penitentiary  as  a  horse  thief, 
and  at  the  end  of  his  term  of  imprisonment  a  United  States  marshal  caused  informa- 
tion that  he  was  a  deserter  to  be  conveyed  to  the  commander  of  a  neighboring  mili- 
tary post,  who  thereupon  had  him  arrested  and  brought  to  the  post,  held  that  the 
marshal  was  not  entitled  to  claim  the  reward.  (Ibid.,  par.  31.) 

So,  where  a  civil  official  merely  informed  a  captain  of  artillery  that  two  soldiers 
serving  in  his  battery  were  deserters  from  the  battalion  of  engineers,  held  that, 
though  such  information  was  correct,  the  official  was  not  entitled  to  the  reward ;  and 
that  the  amount  of  the  same,  which  had  been  erroneously  paid  him  on  the  certificate 
of  the  captain,  should  be  charged  against  the  latter  under  paragraph  736,  Army  Regu- 
lations of  1889  (paragraph  654  of  18(J5).  (Ibid.,  par.  32.) 

The  reward  should  be  withheld  where  there  is  evidence  of  collusion  between  the 
alleged  deserter  and  the  civil  official.  Advised  that  a  suspicion  of  such  collusion 
was  properly  entertained  in  a  case  where  the  soldier,  after  an  absence  of  but  a  few 
days,  voluntarily  surrendered  himself,  at  or  near  the  post  of  delivery,  to  a  police- 
man, who  turned  him  over,  without  expense  or  difficulty,  to  the  military  authorities, 
who  did  not  treat  him  as  a  deserter,  but  caused  him  to  be  charged,  tried,  and  con- 
victed as  an  absentee  without  leave  only.  (Ibid.,  348,  par.  33.) 

An  officer  of  the  customs,  empowered  by  law  to  make  arrests  of  persons  violating 
the  revenue  laws,  but  having  no  such  general  authority  as  is  ordinarily  possessed  by 
peace  officers  "to  arrest  offenders"  (according  to  the  terms  of  the  act  of  October  1, 
1890,  authorizing  certain  civil  officials  to  arrest  deserters),  held  not  entitled  to  be 
paid  the  regulation  reward  for  the  apprehension,  etc.,  of  a  deserter  from  the  Army. 
(Ibid.,  par.  34.) 

Held  that  a  justice  of  the  peace  of  Idaho  was  not,  by  the  laws  of  that  State,  a 
peace  officer  or  authorized  to  arrest  offenders,  and  was  therefore  not  within  the  terms 
of  the  act  of  October  1,  1890,  or  legally  entitled  to  be  paid  the  reward  for  the  arrest, 
etc.,  of  a  deserter.  Such  justice  may  by  his  warrant  authorize  and  thus  cause  arrests, 
but  actual  arrest  pertains,  under  the  laws  of  the  State,  to  another  class — sheriffs, 
constables,  city  marshals,  and  policemen.  Similarly  held  in  regard  to  an  Indian  who 
brought  in  a  deserter  to  a  military  post  in  North  Dakota,  he  having  no  authority 
under  the  laws  of  that  State  to  make  arrests.  But  held  that  a  member  of  the  Indian 
police,  established  under  the  regulations  of  the  Indian  Office,  was  a  civil  officer  hav- 
ing authority  to  arrest  offenders,  and  was  entitled  to  the  reward  for  the  arrest  of  a 
deserter.  [See  Circular  No.  12  (H.  A.).  1894.]  (Ibid.,  par.  35.) 

Circular  No.  11  (H.  A.)t  1883,  declares  that  the  reward  shall  not  be  paid  where  the 
deserter,  at  the  time  of  arrest,  "ia  serving  in  some  other  branch  of  the  Army,"  etc. 
Thus  held  that  the  reward  was  not  payable  for  the  arrest  of  a  deserter  from  the  cav- 
alry who,  subsequently  to  his  desertion,  had  enlisted  in  an  infantry  regiment,  in 
which  he  was  serving  at  the  date  of  the  arrest.  (Ibid.,  par.  36.) 

A  deserter  is  not  chargeable,  under  paragraph  124,  Army  Regulations  of  1889 
(paragraph  126  of  1895),  with  the  expenses  of  transportation  therein  specified,  if  his 
conviction  has  been  duly  disapproved,  such  disapproval  being  tantamount  to  an  ac- 
quittal. (Ibid.,  par.  38.)' 

The  expense  of  the  transportation  of  a  convicted  deserter,  incurred  in  the  course  of 
the  execution  of  his  sentence,  is  not  chargeable  against  the  deserter  under  para- 
graph 124,  Army  Regulations  of  1889  (paragraph  126  of  1895),  but  must  be  borne  by 
the  United  States.  (Ibid.,  par.  39.) 

1  The  liability  to  make  good  to  the  United  States  the  time  lost  by  desertion,  enjoined 
by  the  first  clause  of  this  article,  is  independent  of  any  punishment  which  may  be 
imposed  by  a  court-martial,  on  conviction  of  the  offense ;  it  need  not,  therefore,  be 
adjudged  or  mentioned  in  terms  in  a  sentence,  (a)  If  the  conviction  is  disapproved, 
the  legal  status  of  the  accused  is  the  same  as  if  he  had  been  acquitted,  and  the  obli- 
gation of  additional  service  is  of  course  not  incurred.  (Ibid.,  42,  par.  1.) 

Where  a  deserter  was  sentenced  to  imprisonment  for  the  "balance  of  his  term," 

a  See  G.  0.  21,  Department  of  the  Lakes,  1873;  G-.  O.  94,  Department  of  the  Mis- 
souri, 1867;  G.  C.  M.  O.  74,  Department  of  the  East,  1873.  The  old  ruling  contra  (see 
G.  O.  26,  45,  Headquarters  of  Army,  1843)  may  be  regarded  as  abandoned  in  our  law 
and  practice. 


,     THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  723 

reputed  a  deserter,  and  suffering  accordingly.  And  in 
case  any  officer  shall  knowingly  receive  and  entertain  such 
non-commissioned  officer  or  soldier,  or  shall  not,  after  his 
being  discovered  to  be  a  deserter,  immediately  confine 
him  and  give  notice  thereof  to  the  corps  in  which  he 
last  served,  the  said  officer  shall,  by  a  court-martial,  be 
cashiered.1 

ART.  51.  Any  officer  or  soldier  who  advises  or  persuades    Advisingtode- 
any  other  officer  or  soldier  to  desert  the  service  of  the    fi  Art.  war. 

May  29, 1830,  c. 

United  States,  shall,  in  time  of  war,  suffer  death,  or  suchi83,v.4,P.4i8. 
other  punishment  as  a  court-martial  may  direct;  and  in 


held  that  he  was  not  absolved  from  the  obligation  to  make  good  time  lost;  these 
words  referring  to  the  balance  of  the  term  of  his  original  enlistment.  (Ibid.,  par.  2.) 

The  time  passed  by  a  deserter  in  confinement  under  sentence  can  not  bo  computed 
as  a  part  of  the  period  requited  by  the  article  to  be  made  good  to  the  United  States, 
such  time  not  being  a  time  of  military  service,  but  of  punishment.  Nor  can  the 
period  of  confinement  be  credited  where  the  sentence  is  remitted  before  it  is  fully 
executed.  So  time  passed  by  the  deserter  in  arrest  or  confinement  (or  in  hospital), 
while  waiting  trial  or  action  upon  his  sentence,  can  not  be  so  computed.  (Ibid.,  43, 
par.  3.) 

The  enforcement  of  the  liability,  where  enforced  at  all,  is  generally  postponed  till 
after  the  execution  of  the  punishment  (if  any)  imposed  upon  the  deserter  by  his  sen- 
tence. A  deserter  may  still  be  required  to  make  good  the  time  included  in  his  unau- 
thorized absence  from  the  service,  although  his  term  of  enlistment  has  expired 
pending  a  term  of  confinement  adjudged  him  by  court-martial  on  conviction  of  hia 
offense,  provided  he  has  not  been  discharged.  (Ibid.,  rar.  4.) 

The  United  States  may  waive  the  liability  imposed  by  the  first  clause  of  the  arti- 
cle. It  is  in  fact  waived  where  the  deserter,  without  being  required  to  perform  the 
service,  is  discharged  by  one  of  the  officials  authorized  by  article  4  to  discharge  sol- 
diers. So  it  is  waived  where  the  soldier  is  adjudged  to  be  dishonorably  discharged 
by  sentence  of  court-martial  and  this  punishment  is  duly  approved  and  thereupon 
executed.  (Ibid.,  par.  5.) 

The  provision  of  the  second  clause  of  this  article  applies  only  to  desertions  com- 
mitted while  the  soldier  is  duly  in  the  service  and  before  his  term  of  enlistmen  has 
expired.  A  deserter  who  has  been  duly  discharged  from  the  service  of  course  does 
not  remain  amenable  to  trial  under  this  article.  (Ibid.,  par.  6.) 

The  liability  to  trial  and  punishment  imposed  by  the  second  clause  of  the  article 
is  subject  to  the  limitation  of  prosecutions  prescribed  by  article  103.  (Ibid.,  par.  7.) 

The  liability  to  make  good  the  time  lost  by  his  unauthorized  absence  attaches  to  a 
deserter  as  such,  whatever  his  status  or  the  disposition  of  his  case.  This  liability 
is  quite  distinct  from  the  liability  to  punishment.  It  results  from  the  violation  of 
his  contract,  and  this  contract  is  subject  to  the  law  of  specific  performance.  It 
attaches,  although  he  may  not  have  been  convicted  of  the  oft'ense,  (a)  although  the 
statute  of  limitation  may  have  taken  efl'ect  in  his  case  (whether  or  not  sustained 
as  a  plea  on  a  trial  by  court-martial),  although  he  may  have  been  pardoned,  and 
although  he  may  have  been  restored  to  duty  without  trial.  The  liability  does  not 
attach  to  mere  absentees  Avithout  leave.  (Ibid.,  par.  8.) 

1  This  article,  in  its  first  clause,  does  not  create  a  specific  offense,  or  particular 
kind  of  desertion,  or  an  offense  distinct  from  the  desertion  made  punishable  in  the 
forty-seventh  article,  but  declares  in  effect  that  a  soldier  who  abandons  his  regiment 
shall  be  deemed  none  the  less  a  deserter  although  he  may  forthwith  reenlist  in  a  new 
regiment.  It  does  not  render  the  act  of  reenlistment  a  desertion,  but  simply  makes 
the  reenlistment,  under  the  circumstances  indicated,  prirna  facie  evidence  of  a  deser- 
tion from  the  previous  enlistment  from  which  the  soldier  has  not  been  discharged, 
or,  more  accurately,  evidence  of  an  intent  not  to  return  to  the  same,  (b)  The  object 
of  the  provision,  as  it  originally  appears  in  the  British  code,  apparently  was  to  pre- 
clude the  notion,  that  might  otherwise  have  been  entertained,  that  a  soldier  would 
be  excused  from  repudiating  or  departing  from  his  original  contract  of  enlistment 
provided  he  presently  i-enewed  his  obligation  in  a  different  portion  of  the  military 
force,  (c)  (Dig.  Opiu.  J.  A.  Gen.,  44,  par.  1.) 

Held  that  an  enlisted  marine,  who  abandoned  the  Marine  Corps  without  a  dis- 
charge and  enlisted  in  the  Army,  could  not  be  "  reputed  a  deserter  "  according  to 
the  terms  of  this  article;  but  advised  that  he  be  turned  over  to  the  commandant  of 
that  corps  for  the  proper  disposition  and  action.  (Ibid.,  45,  par.  2.) 

Where  a  soldier  enlisted  in  a  certain  regiment,  after  being  officially  notified  that 
he  was  duly  discharged  from  a  previous  enlistment,  but  without  having  received  the 
written  certificate  and  evidence  of  his  discharge,  which,  by  mistake  or  accident,  had 
not  been  delivered  to  him  as  required  by  article  4,  held  that  he  could  not  properly 
be  "reputed"  or  charged  as  a  deserter.  (Ibid,,  par.  3.) 

a  A  counter  view,  expressed  by  the  Attorney  General  (15  Opins.,  152;  16  ibid.,  170) 
has  not  been  followed  in  the  military^  practice. 

b  See  the  similar  view  expressed  in  G.  C.  M.  0. 129,  Department  of  the  Missouri, 
1872;  G.C.M.0. 77,  ibid. ,1874. 

c  See  Samuel,  330, 331. 


724  THE   MILITARY    LAWS    OF    THE    UNITED    STATES. 

time  of  peace,  any  punishment,  excepting  death ,  which  a 
court-martial  may  direct.1 
Misconduct  at     ART.  52.  It  is  earnestly  recommended  to  all  officers  and 

divine  service.  •'•.._« 

52  Art.  War.  soldiers  diligently  to  attend  divine  service.  Any  officer 
who  behaves  indecently  or  irreverently  at  any  place  of 
divine  worship  shall  be  brought  before  a  general  court- 
martial,  there  to  be  publicly  and  severely  reprimanded  by 
the  president  thereof.  Any  soldier  who  so  offends  shall, 
for  his  first  offense,  forfeit  one- sixth  of  a  dollar;  for  each 
further  offense  he  shall  forfeit  a  like  sum,  and  shall  be  con- 
fined twenty-four  hours.  The  money  so  forfeited  shall  be 
deducted  from  his  next  pay,  and  shall  be  applied,  by  the 
captain  or  senior  officer  of  his  troop,  battery,  or  company, 
to  the  use  of  the  sick  soldiers  of  the  same. 

Profane  oaths.  ART.  53.  Any  officer  who  uses  any  profane  oath  or  exe- 
cration shall,  for  each  offense,  forfeit  and  pay  one  dollar. 
Any  soldier  who  so  offends  shall  incur  the  penalties  pro- 
vided in  the  preceding  article;  and  all  moneys  forfeited  for 
such  offenses  shall  be  applied  as  therein  provided. 

ART.  54.  Every  officer  commanding  in  quarters,  garri- 
son>  or  on  *^e  marcn?  snaU  keep  good  order,  and,  to  the 
utmost  of  his  power,  redress  all  abuses  or  disorders  which 
may  be  committed  by  any  officer  or  soldier  under  his  com- 
mand; and  if,  upon  complaint  made  to  him  of  officers  or 
soldiers  beating  or  otherwise  ill  treating  any  person,  dis- 
turbing fairs  or  markets,  or  committing  any  kind  of  riot, 
to  the  disquieting  of  the  citizens  of  the  United  States,  lie 
refuses  or  omits  to  see  justice  done  to  the  offender,  and 
reparation  made  to  the  party  injured,  so  far  as  part  of  the 
offender's  pay  shall  go  toward  such  reparation,  he  shall  be 
dismissed  from  the  service,  or  otherwise  punished,  as  a 
court-martial  may  direct.2 

1 A  declaration,  made  by  one  soldier  to  another,  of  a  willingness  to  desert  with 
him  in  case  lie  should  decide  to  desert,  held  not  properly  an  advising  to  desert, 
in  the  sense  of  this  article.  To  constitute  the  offense  of  advising  to  desert,  it  is 
not  essential  that  there  should  have  been  an  actual  desertion  by  the  party  advised. 
But  held  otherwise  as  to  the  offense  of  persuading  to  desert;  to  complete  this  offense 
the  persuasion  should  have  induced  the  act.  (a)  (Ibid.,  45.) 

2  While  this  article  would  certainly  appear  to  contemplate  the  making  of  repara- 
tion for  injuries  done  to  the  persons  of  citizens  rather  than  for  injuries  done  to  their 
property,  yet  advised,  in  view  of  the  precedents,  that  it  might  probably  be  regarded 
as  within  the  equity  of  the  article  to  indemnify  a  citizen  for  wanton  injury  done  to 
his  property  by  a  soldier  or  soldiers,  by  means  of  a  stoppage  against  his  or  their 
pay,  summarily  ordered  upon  investigation  by  the  commanding  officer.  (6)  In  a  few 
cases  a  stoppage  of  the  pay  of  an  entire  regiment,  for  damage  to  private  property 

a  Compare  Hough  (Practice),  172,  and  cases  in  G.  0. 23,  Department  of  the  Missouri, 
1862;  G.  C.  M.  0. 11, 152,  ibid.,  1868. 

b  See  G.  O. 35,  Headquarters  of  Army,  1868,  construing  this  article,  and  prescribing 
the  proceeding  under  it,  reparation  for  injury  to  property  as  well  as  person  being 
authorized.  The  article,  however,  is  antiquated  in  form  and  indefinite  and  incom- 
plete in  its  provisions,  and  calls  for  repeal  or  amendment.  For  some  of  the  princi- 
pal cases  in  which  it  has  been  applied  in  our  practice,  the  student  is  referred  to 
G.  0. 4,  Department  of  the  Ohio,  1863 ;  G.  0. 123,  Department  of  the  Gulf,  1864;  G.  O. 
161,  Department  of  Washington,  1865;  G.  O.  59,  ibid. ,1866;  G.  O.  74,  Department  of 
Arkansas,  1865;  G.  O.  48,  55,  Department  of  Louisiana,  1866;  G.  O.  6,  Department 
of  the  Cumberland,  1867;  G.  0. 10,  Department  of  the  South,  1870. 


THE   MILITARY   LAWS    OF   THE   UNITED   STATES.  725 

ART.  55.  All  officers  and  soldiers  are  to  behave  them-    wasteor  spoil, 

and   destruction 

selves  orderly  in  quarters  and  on  the  march;  and  whoever  of  property  with 
commits  any  waste  or  spoil,  either  in  walks  or  trees,  parks,    55  Art.  war. 
warrens,  fish-ponds,  houses,  gardens,  grain-fields,  inclos- 
ures,  or  meadows,  or  maliciously  destroys  any  property 
whatsoever  belonging  to  inhabitants  of  the  United  States, 
(unless  by  order  of  a  general  officer  commanding  a  sepa- 
rate army  in  the  field),  shall,  besides  such  penalties  as  he 
may  be  liable  to  by  law,  be  punished  as  a  court-martial  may 
direct. 
ART.  56.  Any  officer  or  soldier  who  does  violence  to  any  violence  to  per- 

17  sons  bringing 

person  bringing  provisions  or  other  necessaries  to  the  provisions. 
camp,  garrison,  or  .quarters  of  the  forces  of  the  United 
States  in  foreign  parts,  shall  suffer  death,  or  such  other 
punishment  as  a  court-martial  may  direct. 

ART.  57.  Whosoever,  belonging  to  the  armies  of  the  u^Jicingasafe" 
United  Spates  in  foreign  parts,  or  at  any  place  within    |^fj£  JJj^ 
the  United   States  or  their  Territories  during  rebellion's.  5,  v.  12? p! 
against  the  supreme  authority  of  the  United  States,  forces  c.  3',  8. 5,  v.'i2,  p! 

-,       1 1      ,1         A*        i       A.f.  257;  July  31, 1861, 

a  safeguard,  shall  suner  death.  c. 32,  v.  12, p. 234. 

ART.  58.  In  time  of  war,  insurrection,  or  rebellion,  lar-    Certain  crimes 

during  rebellion. 

ceny,  robbery r  burglary,  arson,  mayhem,  manslaughter,  Mar.  3,  isss,  c. 
murder,  assault  and  battery  with  an  intent  to  kill,  wound-  736 ;juiy  13,1861! 
ing,  by  shooting  or  stabbing,  with  an  intent  to  commit  257 jjufy  BIJOU. 
murder,  rape,  or  assault  and  battery  with  an  intent  to c< 
commit  rape,  shall  be  punishable  by  the  sentence  of  a  gen- 
eral court-martial,  when  committed  by  persons  in  the  mili- 
tary service  of  the  United  States,  and  the  punishment  in 

committed  by  its  members,  has  been  sanctioned  as  authorized  under  the  general 
remedial  provisions  of  this  article.  (Dig.  Opin.  J.  A.  Gen.,  40,  par.  1.) 

The  stoppage  contemplated  is  quite  distinct  from  a  punishment  by  fine,  and  it  can 
not  affect  the  question  of  the  summary  reparation  authorized  by  the  article,  that 
the  offender  or  offenders  may  have  already  been  tried  for  the  offense  and  sentenced 
to  forfeiture  of  pay.  In  such  a  case,  indeed,  the  forfeiture,  as  to  its  execution, 
would  properly  take  precedence  of  the  stoppage.  On  the  other  hand,  where  the 
stoppage  is  first  duly  ordered  under  the  article,  it  has  precedence  over  a  forfeiture 
subsequently  adjudged  for  the  offense.  (Ibid.,  par.  2.) 

It  does  not  affect  the  question  of  reparation  under  the  .article  that  the  offender 
or  offenders  may  be  criminally  liable  for  the  injury  committed  or  may  have  been 
punished  therefor  by  the  civil  authorities.  (Ibid.,  il,  par.  3.) 

Held  that  the  remedial  provision  of  this  article  could  not  be  enforced  in  favor  of 
military  persons,  or  in  favor  of  the  United  States,  or  to  indemnify  parties  for  prop- 
erty stolen  or  embezzled.  (Ibid.,  par.  4.) 

The  pay  of  the  offender  or  offenders  can  be  resorted  to  only  for  the  purpose  of 
the  "reparation."  A  military  commander  can  have  no  authority  to  add  a  further 
amount  of  stoppage  by  way  of1  punishment.  (Ibid.,  par.  5.) 

Held  that,  as  an  agency  for  assessing  the  amount  of  the  damage,  a  court-martial 
could  not  properly  be  substituted  for  the  board  directed  by  General  Orders  35,  Head- 
quarters of  Army,  1868,  to  be  convened  for  such  purpose.  (Ibid.,  par.  6.) 

The  procedure  under  this  article,  and  pursuant  to  General  Orders  35  of  1868,  is  as 
follows:  The  citizen  aggrieved  tenders  a  "complaint"  under  oath,  charging  the 
injury  against  a  particular  soldier  or  soldiers,  described  by  name  (if  known),  regi- 
ment^ etc.,  and  accompanied  by  evidence  of  the  injury,  and  of  the  instrumentality 
of  the  person  or  persons  accused.  If  such  evidence  be'  satisfactory,  the  commanding 
officer  has  the  damages  assessed  by  a  board,  and  makes  orders  for  such  stoppage  of 
pay  as  will  be  sufficient  for  the  "reparation"  enjoined  by  the  article.  The  com- 
mander must  have  a  proper  case  presented  to  him;  he  can  not  legally  proceed  sua 
sponte.  (Ibid.,  par.  7.) 

Where  proof  was  duly  made  under  this  article  of  injury  done  by  some  persons  of 
a  command,  but  the  active  perpetrators  could  not  upon  investigation  be  determined, 
and  it  appeared  that  the  entire  command  was  present  and  implicated,  held  that  the 
stoppage  might  legally  be  made  against  all  the  individuals  present.  (Ibid.,  par.  8.) 


726      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

any  such  case  shall  not  be  less  than  the  punishment  pro- 
vided, for  the  like  offense,  by  the  laws  of  the  State,  Terri- 
tory, or  district  in  which  such  offense  may  have  been 
committed.1 

ART.  59.  When  any  officer  or  soldier  is  accused  of  a  capi- 
tal crime,  or  of  any  offense  against  the  person  or  property 
of  any  citizen  of  any  of  the  United  States,  which  is  pun- 
ishable by  the  laws  of  the  land,  the  commanding  officer, 
and  the  officers  of  the  regiment,  troop,  battery,  company, 
fe?derlein  °mi°ii- or  detachment,  to  which  the  person  so  accused  belongs,  are 
^im£SSat?reQu*rec*>  excePt  iu  time  of  war?  uPon  application  duly 
59  Art!  war.    made  by  or  in  behalf  of  the  party  injured,  to  use  their 
utmost  endeavors  to  deliver  him  over  to  the  civil  magis- 
trate, and  to  aid  the  officers  of  justice  in  apprehending  and 
securing  him,  in  order  to  bring  him  to  trial.     If,  upon  such 
application,  any  officer  refuses  or  willfully  neglects,  except 
in  time  of  war,  to  deliver  over  such  accused  person  to  the 
civil  magistrates,  or  to  aid  the  officers  of  justice  in  appre- 
hending him,  he  shall  be  dismissed  from  the  service.2 
ofCivaminagraS     ART-  6(>.  An7  person  in  the  military  service  of  the  United 
states u       e  (l  States  who  makes  or  causes  to  be  made  any  claim  against 

Mar.'  2,  1863,  c.  - 

'696'     '  The  Jurisdicti.011  conferred  by  this  article  upon  military  courts  has  been  held  by 
ar.      the  highest  judicial  authority  to  be  not  exclusive,  but  concurrent  merely  with  that 
of  the  civil  tribunals,  (a)     The  word  "shall"  in  the  term  "  shall  be  punishable  "  is 
construed  as  equivalent  to  "may."  (b)     (Dig.  Opin.  J.  A.  Gen.,  49,  par.  2.) 

In  framing  a  charge  under  this  article  it  will  not  in  general  be  essential  to  allege 
in  connection  with  the  date  of  the  offense  or  to  show  by  evidence  that  the  act  was 
committedat  a  time  of  war,  etc.,  this  being  a  fact  of  which  a  court  will  ordinarily 
properly  take  judicial  notice,  (c)  (Ibid.,  par.  3.) 

Held  (November,  1865)  that  military  courts  were  still  empowered  to  exercise  the 
jurisdiction  conferred  by  this  article,  the  status  belli  not  having  yet  been  declared 
to  be  terminated,  either  by  the  Executive  or  Congress.  A  court-martial,  of  course, 
could  have  no  authority  whatever  to  decide  whether  the  war  was  ended.  (Ibid., 
par.  4.) 

Where  a  sentence,  adjudged  by  a  court  convened  by  the  authority  of  this  article, 
imposed  a  punishment  of  less  severity  than  that  provided  for  the  same  offense  by  the 
law  of  the  State  in  which  the  offense  was  committed  (as  imprisonment  where  the  law 
of  the  State  required  the  death  penalty),  held  that  such  a  sentence  was  unauthorized 
and  inoperative.  But  though  the  punishment  must  not  be  "less,"  it  may  legally  be 
of  greater  severity  than  that  provided  by  the  local  statute.  Held  that  the  court,  in 
imposing  punishment,  should  be  governed  by  the  local  law  (so  far  as  required  by  the 
article),  although  the  offense  was  committed  in  a  State  whose  ordinary  relations  to 
the  General  Government  had  been  suspended  by  a  state  of  war  or  insurrection,  (d) 
(Ibid.,  par.  5.) 

2This  article  is  a  recognition  of  the  general  principle  of  the  subordination  of  the 
military  to  the  civil  power,  (e)  and  its  main  purpose  evidently  is  to  facilitate,  in 
cases  of  offenders  against  the  local  civil  statutes  who  happen  to  be  connected  with 
the  Army,  the  execution  of  those  statutes,  Avhere,  as  citizens,  such  persons  remain 
legally  amenable  to  arrest  and  trial  thereunder.  Protection  of  military  persons 
from  civil  arrest  is  not  the  object  of  this  article.  (Dig.  Opin.  J.  A.  Gen.,  50,  par.  1.) 

The  commanding  officer,  before  surrendering  the  party,  is  entitled  to  require  that 
the  "application"  shall  be  so  specific  as  to  identify  theaccused  and  to  show  that  he  is 
charged  with  a  particular  crime  or  offense  which'is  within  the  class  described  in  the 
article.  Where  it  is  doubtful  whether  the  application  is  made  in  good  faith  and  in 
the  interests  of  law  and  justice,  the  commander  may  demand  that  the  application  be 
especially  explicit  and  be  sworn  to;  and  in  general  the  preferable  and,  indeed,  only 
satisfactory  course  will  be  to  require  the  production,  if  practicable,  of  a  due  and 
formal  warrant  or  writ  for  the  arrest  of  the  party.  (/)  The  application  required  by 

aColeman  v.  Tennessee,  7  Otto,  513.  And  see  People  v.  Gardiner,  6  Parker,  143; 
G.  0. 29,  Department  of  the  Northwest,  1864 ;  G.  0. 32,  Department  of  Louisiana,  1866. 

b  People  v.  Gardiner,  ante. 

cSee  the  application  of  this  principle  to  the  fact  of  the  existence  of  the  late  war 
of  the  rebellion  in  Justice  Field's  charge  to  the  grand  jury  in  U.  S.  v.  Greathouse, 
4  Sawyer,  457. 

d  That  the  Southern  States  during  the  late  war  were  "at  no  time  out  of  the  pale 
of  the  Union,"  see  White  v.  Hart,  13  Wallace,  646. 

e  See  the  declaration  of  this  principle  in  the  case  of  Dow  v .  Johnson,  10  Otto.  169. 

/2Opin.  Att.  Gen.  10. 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  727 

the  TJDited  States,  or  any  officer  thereof,  knowing  such 
claim  to  be  false  or  fraudulent;  or 

Who  presents  or  causes  to  be  presented  to  any  person  cl^mkine    false 
in  the  civil  or  military  service  thereof,  for  approval  or  pay- 
ment,  any  claim  against  the  United  States  or  any  officer 
thereof,  knowing  such  claim  to  be  false  or  fraudulent;  or 


the  article  should  bo  made  in  a  case  where  the  crime  was  committed  by  the  party 
before  he  entered  the  military  service  equally  as  where  it  was  committed  by  him 
while  in  the  service,  (a)  In  the  former  case  a  more  exact  identification  may  perhaps 
reasonably  be  required.  (Ibid.,  p.  51,  par.  3.) 

The  provisions  of  this  article  are  applicable  only  when  the  officer  or  soldier  is 
accused  of  a  crime  or  oft'ense  "which  is  punishable  by  the  laws  of  the  land ;"  i.  e.,  by 
the  public  law— statutes  or  constitution— of  the  particular  State,  (b)  (Ibid.,  par.  4.) 

The  article  is  not  applicable  to  a  case  of  an  oifense  committed  against  the  laws 
of  the  United  States,  as,  for  instance,  the  statutes  prohibiting  the  introduction  of 
liquor  into  the  Indian  country.  Nor  is  it  applicable  to  a  case  of  an  offense  com- 
mitted in  a  place  over  and  within  which  the  jurisdiction  of  the  United  States  is 
exclusive,  (fc)  (Ibid.,  p.  52,  par.  5.) 

The  party  should  be  surrendered  upon  proper  application,  though  the  offense  be 
one  of  which  a  military  court  has  jurisdiction  concurrently  with  the  civil  courts; 
unless,  indeed,  the  military  jurisdiction  has  already  duly  attached  (by  means  of 
arrest  or  service  of  charges  with  a  view  to  trial),  in  which  case  the  prisoner  may  be 
surrendered  or  not  as  the  proper  authority  may  determine.  A  soldier  under  a  sen- 
tence of  confinement  imposed  by  court-martial  can  not,  in  general,  properly  be  sur- 
rendered under  this  article.  In  such  a  case  the  civil  authorities  should  regularly 
defer  their  application  till  the  military  punishment  has  been  executed  or  remitted,  (d) 
Where  a  soldier,  duly  surrendered  under  this  .article  and  allowed  to  go  on  bail,  was 
thereupon  returned  to  duty,  held  that  it  was  within  the  spirit  of  the  article  for  the 
department  commander  to  instruct  the  commanding  officer  of  such  soldier  to  cause 
him  to  appear  for  trial  at  the  proper  time.  (Ibid.,  par.  6.) 

An  officer  or  soldier  accused  as  indicated  by  the  article,  though  he  may  be  willing 
and  may  desire  to  surrender  himself  to  the  civil  authorities,  or  to  appear  before  the 
civil  court,  should  not  in  general  bo  permitted  to  do  so,  but  should  be  required  to 
await  the  formal  application.  (Ibid.,  53,  par.  7.) 

In  view  of  the  obligation  devolved  by  this  article  upon  officers  of  the  Army,  a 
post  commander  would  properly  be  required  to  apprehend  and  hold  for  surrender  to 
the  civil  authorities  a  soldier  who,  having  been  once  surrendered  under  the  article, 
had  escaped  and  returned  to  the  post,  (e)  (Ibid.,  par.  8.) 

The  term  "any  of  the  United  States,"  employed  in  this  article,  held  properly  to 
include  any  and  all  of  the  political  members  of  our  governmental  system,  and  to 
embrace  an  organized  Territory  equally  as  a  State.  (Ibid.,  par.  9.) 

The  article  Is  directory,  not  jurisdictional.  It  does  not  limit  the  action  to  be 
taken  by  the  military  authorities  to  cases  where  the  application  is  made  by  the 
party ;  it  may  be  made  in  his  behalf.  It  does  not  place  a  soldier  who  has  committed 
a  crime  and  been  indicted  therefor  beyond  the  reach  of  the  civil  power  if  the  person 
injured  does  not  apply  for  his  surrender.  In  a  case— one  of  murder,  for  example— 
where  there  can  be  no  personal  application,  the  State  properly  takes  the  place  of  the 
individual.  And  so  in  all  other  cases  where  an  indictment  has  been  found  or  a 
warrant  of  arrest  has  been  issued,  the  State,  with  -which  resides  the  jurisdiction 
and  the  power  to  prosecute,  may  make  the  demand,  and  upon  its  demand  it  is  the 
duty  of  the  commanding  officer  to  surrender  the  party  charged.  (Ibid.,  par.  10.) 

The  article  contemplates  only  cases  in  which  an  "officer  or  soldier  is  accused,' 
etc.  So,  held  that  it  did  not  apply  to  a  case  of  a  civilian  (Chinese)  laundryman 
employed  and  residing  at  a  military  post  accused  of  a  civil  crime.  While  it  would 
be  eqiially  desirable  that  the  surrender  should  be  made  in  such  a  case,  such  sur: 
render  would  be  a  matter  of  comity,  nob  of  official  duty  under  the  article.  (Ibid., 
54,  par.  11.) 

This  article  does  not  apply  to  the  service  by  a  sheriff  on  an  officer  or  soldiei-  of  a 
subpcena  to  appear  as  a  witness  before  a  civil  court.  In  such  a  case,  indeed,  the 
civil  official  should,  as  a  matter  of  comity,  apply  first  to  the  post  commander, 
whether  or  not  the  post  be  within  the  exclusive  jurisdiction  of  the  United  States. 
It  will  then  be  for  the  commander,  in  comity,  to  facilitate  the  service  and  to  issue 
the  necessary  permit  or  order  to  enable  and  cause  the  officer  or  soldier  to  attend  the 
court.  (Ibid,  par.  12.) 

a  See  G.  O.  29,  Department  of  the  Northwest,  1864,  where  it  is  remarked  that  there 
is  a,n  especial  obligation  to  surrender  the  soldier  where  the  crime  was  committed  by 
him  before  entering  the  military  service. 

b  As  to  the  meaning  of  the  term  "laws  of  the  land,"  especially  with  reference  to 
municipal  ordinances,  see  Vanzautv.  Waddell,  2  Yerger,  270;  State  Bk.  v.  Cooper, 
ibid.,  605;  Horn  v.  People,  26  Mich.,  228.  In  21  Qpin.  Att.  Gen.,  88  (published  in  cir- 
cular 15,  A.  G.  O.,  1894),  it  was  held  that  a  municipal  ordinance  is  within  the  expres- 
sion "laws  of  the  land,"  as  used  in  the  fifty-ninth  article  of  war,  and  that  a  soldier 
violating  such  an  ordinance  and  escaping  to  a  military  reservation  should  be  deliv- 
ered to  the  civil  authorities  for  trial  on  demand. 

clt  is  further  held,  in  Ex  parte  McRoberts,  16  Iowa,  603,  that  the  provisions  of 
the  article  apply  only  to  officers  and  soldiers  while  within  the  immediate  control 
and  jurisdiction  of  the  military  authorities,  and  therefore  do  not  apply  to  a  case  of 
a  soldier  absent  on  furlough;  but  that  such  a  soldier,  pending  his  furlough,  may  be 
arrested  in  the  same  manner  as  any  civilian. 

d  Compare  6  Opiu.  Att.  Gen.,  423. 

e  See  a  case  to  a  similar  effect  published  in  G.  0. 7,  Department  of  the  South,  1871. 


728 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Agreement  to     Who  enter s  into  any  agreement  or  conspiracy  to  defraud 

obtain    payment 

of  false  claim,  the  United  States  by  obtaining,  or  aiding  others  to  obtain, 
the  allowance  or  payment  of  any  false  or  fraudulent  claim ;  or 

False  paper.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 
obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States,  or  against  any  officer  thereof, 
makes  or  uses,  or  procures  or  advises  the  making  or  use  of, 
any  writing  or  other  paper,  knowing  the  same  to  contain 
any  false  or  fraudulent  statement ;  or 

Perjury.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 

obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  makes,  or 
procures  or  advises  the  making  of,  any  oath  to  any  fact  or 
to  any  writing  or  other  paper,  knowing  such  oath  to  be 
false;  or1 

Forgery.  Who,  for  the  purpose  of  obtaining,  or  aiding  others  to 


1  The  offense  known  as  the  duplicating  of  pay  rolls,  where  it  involves,  as  it  gener- 
ally does,  a  presenting  or  a  causing  to  be  presented  of  a  false  or  fraudulent  claim 
against  the  United  States,  is  properly  chargeable  under  this  article.  (Dig.  Opin. 
J.  A.  Gen.,  55,  par.  1.) 

When  an  officer  who  had  been  sentenced  to  forfeit  all  pay  due,  bnfc  whose  sentence 
had  not  yet  been  approved  or  published,  presented  pay  accounts  to  the  paymaster 
for  his  pay,  a  nd  received  the  amount  of  the  same,  held  that  ho  was  not  triable  for 
the  offense  of  presenting  a  fraudulent  claim  under  this  article.  (Ibid.,  par.  2.) 

The  presenting  of  false  and  fraudulent  claims  for  horses  lost  in  battle,  for  recruit- 
ing expenses,  and  for  rewards  for  the  arrest  of  deserters,  held  offenses  within  para- 
graphs 1,  2,  and  4  of  this  article.  (Ibid.,  par.  3.) 

Where  a  soldier,  in  order  to  procure  his  discharge  from  the  service  and  the  pay- 
ment thereupon  of  a  considerable  amount  not  in  fact  duo  him,  forged  the  name  of 
his  commanding  officer  on  a  discharge  paper  and  a  "final  statement"  paper,  and 
presented  the  same  to  a  paymaster,  held  that  he  was  chargeable  with  offenses  defined 
in  the  second,  fourth,  and  sixth  paragraphs  of  this  article.  (Ibid.,  par.  4.) 

Where  a  disbursing  officer,  having  caused  a  creditor  of  the  United  States  to  sign 
a  receipt  in  blank,  paid  him  a  less  sum  than  was  due  him,  and  afterwards  inserted 
the  true  amount  due  in  the  receipt,  so  as  to  obtain  credit  with  the  United  States  for 
the  greater  sum,  held  that  he  was  chargeable  with  the  offense  defined  in  the  seventh 
paragraph  of  this  article.  (Ibid.,  56,  par.  5.) 

Where  an  officer,  by  collusion  with  a  contractor,  who  had  contracted  for  the  delivery 
of  military  supplies,  received  for  a  pecuniary  consideration  from  the  latter  a  less 
amount  of  supplies  than  the  United  States  was  entitled  to  under  the  contract,  while 
at  the  same  time  giving  him  a  voucher  certifying  on  its  face  the  delivery  of  the 
whole  amount,  held  that  such  officer  was  chargeable  with  an  offense  of  the  class 
defined  in  the  eighth  paragraph  of  this  article.  (Ibid.  par.  6.) 

In  a  case  of  embezzlement  of  public  funds  (a)  or  property  charged  under  this  article, 
it  is  not  necessary  to  allege  in  terms,  or  to  prove,  an  intent  to  defraud  the  United 
States.  It  is  the  act  of  legal  embezzlement  which  is  made  the  offense,  irrespective 
of  the  purpose  or  motive  of  such  act.  (Ibid.,  par.  7.) 

In  order  to  determine  whether  certain  acts  or  conduct  may  properly  be  charged 
as  constituting  embezzlement  of  public  money  under  the  ninth  paragraph  of  this 
article,  the  sect  ions  of  the  Revised  Statutes,  especially  those  contained  in  chapter  6  of 
Title  70,  may  properly  be  recurred  to.  Acts  here  specified  as  constituting  embezzle- 
ments in  law  may,  when  committed  by  officers  of  the  Army,  be  charged  as  embez- 
zlements under  this  article,  and  the  rules  of  evidence  established  by  these  sections 
may  also  bo  applied,  where  apposite,  to  military  cases,  (b)  But  as  to  the  penalties 
prescribed  in  the  same,  these,  though  useful  as  going  to  indicate  a  reasonable  measure 
of  punishment  when  imprisonment  or  fine  is  proposed  to  be  adjudged,  are  of  course 
in  no  respect  obligatory  upon  military  tribunals,  and  any  approved  military  penalty 
or  penalties,  sucli  as  dismissal,  suspension,  etc.,  may  be  imposed  by  courts-marl ial 
upon  conviction  of  embezzlement,  either  alone  or  in  connection  with  imprisonment  or 
fine.  So  a  term  of  confinement,  or  a  fine  (or  forfeiture  of  pay),  in  excess  of  the  pen- 
alties authorized  for  civil  offenders,  may  legally  be  ad  judged 'by  such  courts.  (Ibid., 
par.  8.) 

The  withdrawing  by  a  disbursing  officer  of  the  Army,  from  an  authorized  deposi- 
tory, of  public  funds  for  a  purpose  not  prescribed  or  authorized  by  law — as  for  per- 
sonal use,  or  to  pay  claims  not  due  from  the  United  States  or  payable  by  such  officer— 
being  a  form  of  embezzlement  defined  by  section  5488,  Revised  Statutes,  field  prop- 

a  "All  money  lawfully  in  the  hands  of  a  public  officer,  and  for  which  he  is  account- 
able, is  money  of  the  United  States."  (United  States  v.  Watkins,  3  Crauch  C.  C.,  441.) 

b  See  cases  in  which  embezzlements  of  this  class  were  charged  against  officers  of 
the  Army  in  G.  O.,  1,  War  Department,  1861;  G.  C.  M.  O.,  43,  86,  Headquarters 
of  Army,  1868;  G.  C.  M.O.,  21,  War  Department,  1871;  G  .0.  M.  O.,  27,  34,  ibid.,  1872; 
G.  C.  M.  O.,  81,  ibid.,  1874 ;  G.  C.  M.  O.,  52,  Headquarters  of  Army,  1877. 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  729 

obtain,  the  approval,  allowance,  or  payment  of  any  claim 
against  the  United  States  or  any  officer  thereof,  forges  or 
counterfeits,  or  procures  or  advises  the  forging  or  counter- 
feiting of,  any  signature  upon  any  writing  or  other  paper, 
or  uses,  or  procures  or  advises  the  use  of,  any  such  signa- 
ture, knowing  the  same  to  be  forged  or  counterfeited  j  or1 

Who,  having  charge,  possession,  custody,  or  control  of  ,JeJjJeitiJf,i^?8 
any  money  or  other  property  of  the  United  States,  furnished  receipt  calls  for. 
or  intended  for  the  military  service  thereof,  knowingly 
delivers,  or  causes  to  be  delivered,  to  any  persons  having 
authority  to  receive  the  same,  any  amount  thereof  less 
than  that  for  which  he  receives  a  certificate  or  receipt  5  or 

Who,  being  authorized  to  make  or  deliver  any  paper 


certifying  the  receipt  of  any  property  of  the  United  States,  truthof.  m 
furnished  or  intended  for  the  military  service  thereof, 
makes,  or  delivers  to  any  person,  such  writing,  without 
having  fall  knowledge  of  the  truth  of  the  statements 
therein  contained,  and  with  intent  to  defraud  the  United 
State  ;  or1 

Who  steals,  embezzles,  knowingly  and  willfully  misap-  w^n  6fui!  J  sefi1 
propriates,  applies  to  his  own  use  or  benefit,  or  wrongfully  ing.  etc. 
or  knowingly  sells  or   disposes  of  any  ordnance,   arms, 
equipments,    ammunition,    clothing,    subsistence    stores, 
money,  or  other  property  of  the  United  States,  furnished 
or  intended  for  the  military  service  thereof;  or  l 

erly  charged  with  embezzlement  under  the  present  article  ;  and  convictions  of  offi- 
cers upon  such  a  charge  held  authorized  and  legal. 

But  held  that  to  constitute  such  embezzlement  it  is  not  necessary  that  there  should 
have  been  a  personal  conversion  of  the  funds  or  an  intent  to  defraud.  The  object  of 
the  law  is  to  provide  a  safeguard  against  the  misuse  and  diverting  from  their 
appointed  purpose  of  public  moneys,  and  the  intent  of  the  offender,  whether  fraud- 
ulent or  not,  enters  in  no  respect  into  the  statutory  crime,  (a)  If  the  withdrawal  or 
application  of  the  funds  is  simply  one  not  prescribed  or  authorized  by  law,  the 
offense  is  complete,  (b)  An  absence,  however,  of  criminal  motive  in  the  illegal  act 
may  be  shown  in  mitigation  of  sentence  in  a  military  case. 

So,  held  that  it  constituted  no  defense  to  a  charge  of  an  embezzlement  of  this  class, 
though  it  might  be  shown  in  mitigation  of  punishment,  that  the  officer  had  restored 
to  the  public  depository  the  funds  illegally  withdrawn  by  him  before  a  formal 
demand  was  made  for  the  same.  (Ibid.,  57,  par.  9.) 

1  It  is  a  defense  to  a  charge  (under  this  article)  of  the  embezzlement  defined  in  sec- 
tion 5490,  llevdsed  Statutes,  as  consisting  in  a  failure  to  safely  keep  public  moneys 
by  an  officer  charged  with  the  safekeeping  of  the  same,  that  the  funds  alleged  to 
have  been  embezzled  were,  without  fault  on  the  part  of  the  accused,  lost  in  trans- 
portation, or  fraudulently  or  feloniously  abstracted.  (Dig.  Opin.  J.  A.  Gen.,  58, 
par.  10.) 

Section  5495,  Revised  Statutes,  provides  that  the  refusal  of  any  person  charged 
with  the  disbursement  of  public  moneys,  promptly  to  transfer  or  disburse  the  funds 
in  his  hands,  "upon  the  legal  requirement  of  an  authorized  officer,  shall  bo  deemed, 
upon  the  trial  of  any  indictment  against  such  person  for  embezzlement,  as  prhna 
facie  evidence  of  such  embezzlement."  Applying  this  rule  to  a  military  case,  it  is 
clear  that,  in  the  event  of  such  a  refusal  by  a  disbursing  officer  of  the  Army,  the 
burden  of  proof  would  be  upon  him  to  show  that  his  proceeding  was  justified,  and 
that  it  would  not  be  for  the  prosecution  to  show  what  had  become  of  the  funds.  So, 
where  an  acting  commissary  of  subsistence,  on  being  relieved,  failed  to  turn  over 
the  public  moneys  in  his  hands  to  his  successor,  or  to  his  post  commander  when  or- 
dered to  do  so,  or  to  produce  such  moneys,  exhibit  vouchers  for  the  same,  or  other- 
wise account  for  their  use,  when  so  required  by  his  department  commander,  held 
that  he  was  properly  charged  with  and  convicted  of  embezzlement  under  this  article. 
(Ibid.,  par.  11.) 

Where  a  quartermaster  used  temporarily  with  his  private  carriage  a  pair  of  Gov- 
ernment horses  in  his  charge,  held  that  be  was  not  properly  chargeable  with  em- 
bezzlement, but  with  the  offense,  under  this  article,  of  "knowingly  applying  to  his 


a  See  remarks  of  the  Secretary  of  War  in  G-.  C.  M.  0. 34,  War  Department,  1872. 
b  Compare  14  Opiu.  Att.  Gen. ,'473. 


730      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

Buying  public     Who  knowingly  purchases,  or  receives  in  pledge  for  any 
erty.  obligation  or  indebtedness,  from  any  soldier,  officer,  or 

other  person  who  is  a  part  of  or  employed  in  said  forces 
or  service,  any  ordnance,  arms,  equipments,  ammunition, 
clothing,  subsistence  stores,  or  other  property  of  the 
United  States,  such  soldier,  officer  or  other  person  not 
having  lawful  right  to  sell  or  pledge  the  same, 

Shall,  on  conviction  thereof,  be  punished  by  fine  or  im- 
prisonment, or  by  such  other  punishment  as  a  court-martial 
may  adjudge.  And  if  any  person,  being  guilty  of  any  of 

own  use  and  benefit  property  of  the  United  States,  furnished  for  the  military  serv- 
ice." (Ibid.,  par.  12.) 

The  misappropriation  specified  in  the  article  need  not  be  an  appropriation  for  the 
personal  profit  of  the  accused.  The  words  "to  his  own  use  or  benefit "  qualify  only 
the  term  "  applies."  (Ibid.,  par.  13.) 

In  charging  a  stealing,  embezzlement,  misappropriation,  etc.,  tinder  this  article, 
it  is  not  necessary  to  allege  that  the  funds  or  property  were  "furnished  or  intended 
for  the  military  service;"  it  is  sufficient  if  this  fact  appears  from  the  evidence,  and 
in  most  cases  it  will  be  inferable  from  the  very  nature  of  the  property  itself— as 
where,  for  example,  the  same  consists  of  "quartermaster  stores,"  "subsistence 
stores,"  "ordnance  stores,"  etc.  (Ibid.,  par.  14.) 

Where  an  officer  of  the  Quartermaster  Department  used  teams,  tools,  and  other 
public  property,  in  his  possession  as  such  officer,  in  erecting  buildings,  etc.,  for  the 
benefit  of  an  association,  composed  mainly  of  civilians,  of  which  he  was  a  member, 
held  that  he  was  properly  chargeable  with  a  misappropriation  of  property  of  the 
United  States.  And  similarly  held  of  a  loaning  by  such  an  officer  of  public  property 
(corn)  to  a  contractor,  for  the  purpose  of  enabling  him  to  fill  a  contract  made  with 
the  United  States  through  another  officer,  (a)  The  fact  that  a  practice  exists  in  a 
post  or  other  command  of  making  a  use  (not  authorized  by  regulation  or  order)  of 
Government  property  for  private  purposes,  or  of  loaning  it  in  the  prospect  of  a 


The  offense  of  stealing,  indicated  in  the  ninth  paragraph  of  this  article,  consists 
in  a  larceny  of  "property  of  the  United  States  furnished  or  intended  for  the  military 
service."  Except  in  time  of  war  (see  fifty-eighth  article,  supra,  note  1)  larceny  of 
other  property  can  be  charged  as  a  military  offense  only  when  cognizable  under 
article  62,  as  prejudicing  good  order  and  military  discipline,  (ibid.,  par.  1C.) 

Held  that  under  the  concluding  provision  ot  this  article  (b)  a  soldier  might  be 
brought  to  trial  for  an  offense  of  the  class  specified  therein  while  held  imprisoned, 
after  dishonorable  discharge,  under  a  sentence  imposed  for  another  offense,  provided, 
of  course,  the  two  years'  limitation  of  article  103  had  not  expired.  (Ibid.,  par.  17.) 

In  view  of  the  words  "in  the  same  manner,"  employed  in  the  last  paragraph  of 
this  article,  considered  in  connection  with  the  seventy-seventh  article  and  section 
1658,  Revised  Statutes,  held  that  a  volunteer  or  militia  officer  or  soldier  could  be  tried, 
after  his  discharge  from  the  service,  for  a  breach  of  this  article  committed  while  in 
the  service,  only  by  a  court  composed  in  the  one  case  of  other  than  regular  officers 
and  in  theother  of  militia  officers.  (See  seventy-seventh  article.)  (Ibid.,  60,  pa/.  18.) 

In  view  of  the  injunction  and  definition  of  sections  3622  and  5491,  Revised  Statutes, 
an  officer  who,  in  his  official  capacity,  receives  public  mouey  (not  pay  or  an  allow- 
ance), which  he  fails  duly  to  account  for  to  the  United  States,  is  guilty  of  embezzle- 
ment. The  statute  makes  no  distinction  as  to  the  sources  from  which  the  money  is 
derived  or  the  circumstances  of  its  receipt.  Nor  is  it  material  whether  or  not  the 
officer  actually  converted  it  to  his  own  use  or  what  was  the  motive  of  his  disposition 
of  it.  So  held  that  an  officer  who,  having  claimed  and  exacted  certain  moneys  from 
Government  contractors  for  alleged  liabilities  on  their  part,  failed  to  pay  the  same 
into  the  Treasury,  or  to  duly  account  therefor,  was  guilty  of  embezzlement  under 
the  ninth  paragraph  of  this  article.  (Ibid.,  par.  19.) 

Where  an  officer  allowed  to  an  enlisted  man  and  paid  to  him,  out  of  certain  public 
funds  consisting  of  the  proceeds  of  a  public  sale  of  condemned  quartermaster  stores, 
an  amount  of  10  per  cent  on  the  total  of  such  proceeds,  as  a  compensation  for  tlie 
services  of  such  man  as  auctioneer  at  the  sale,  held  that  such  payment  was  illegal 
and  unauthorized  (c)  and  constituted  an  embezzlement  of  public  money  chargeable 
under  the  sixtieth  or  the  sixty-second  article.  (Ibid.,  par.  20.) 

In  charging  embezzlement  under  this  article,  it  is  not  necessary,  if  the  fact  suffi- 
ciently appears  from  other  allegations,  to  aver  in  terms  in  the  specification  that 

aCompare  case  in  G.  C.  M.  0.,  46,  Headquarters  of  Army,  1869. 

6  Whether  this  provision,  in  subjecting  officers  and  soldiers  discharged,  mustered 
out,  etc.,  and  become  civilians,  to  trial  by  court-martial  in  the  same  manner  as  if 
they  were  a  part  of  the  Army  is  constitvitional  is  a  question  which  is  believed  not 
to  have  been  judicially  passed  upon.  Probably  originally  inserted  in  the  act  of 
March  2,  1863  (from  which  the  article  is  repeated)  as  in  the  nature  of  a  war  meas- 
ure, it  was  in  fact  relied  upon  as  giving  jurisdiction  in  but  a  small  number  of  cases 
even  during  the  war,  and  since  that  period  no  case  is  known  in  which  the  excep- 
tional jurisdiction  conferred  lias  been  taken  advantage  of. 

cSo,  also,  held  by  the  Second  Comptroller  of  the  Treasury  in  the  same  case.  See 
opinion  published  in  circular  No.  3  (H.  A.),  1894. 


THE   MILITARY  LAWS   OF   THE   UNITED   STATES.  731 

the  offenses  aforesaid,  while  in  the  military  service  of  the 
United  States,  receives  his  discharge,  or  is  dismissed  from 
the  service,  he  shall  continue  to  be  liable  to  be  arrested 
and  held  for  trial  and  sentence  by  a  court-martial,  in  the 
same  manner  and  to  the  same  ex-tent  as  if  he  had  not 
received  such  discharge  nor  been  dismissed. 

ART.  61.  Any  officer  who  is  convicted  of  conduct  unbe-  coSgUa*<X£cer 
coming  an  officer  and  a  gentleman  shall  be  dismissed  from  and  gentleman. 

.  ol  Art.  vVftr. 

the  service.1 

the  money  or  property  was  "furnished  or  intended  for  the  military  service  of  the 
United  States."  (Ibid.,  par.  21.) 

Repeated  false  statements  of  the  accused  relative  to  the  public  moneys  for  which 
he  was  accountable  are  competent  evidence  going  to  sustain  a  charge  of  embezzle- 
ment under  this  article.  (Ibid.  61,  par.  22.) 

The  application  or  operation  of  this  article  is  in  no  manner  affected  by  the  enact- 
ment of  March  3,  1875,  chapter  144,  constituting  embezzlement  of  public  property 
a  felony  and  making  it  triable  by  a  United  States  court,  such  act  being  a  purely  civil 
statute.  (Ibid.,  par.  23.) 

Where  an  officer,  for  the  purpose  of  obtaining  the  allowance  of  a  fraudulent  claim 
against  the  United  States,  willfully  induced  another  to  make  to  the  United  States  a 
lease  of  premises  for  public  use,  containing  a  false  and  fraudulent  statement,  held 
that  Le  was  chargeable  with  an  offense  of  the  class  specified  in  the  fourtli  paragraph 
of  this  article.  (Ibid.,  par.  24.) 

1  To  constitute  an  offense  under  this  article  the  conduct  need  not  be  "scandalous 


and  infamous."  These  words,  contained  in  the  original  article  of  1775,  were  dropped 
in  the  form  adopted  in  1806.  Nor  is  it  essential  that  the  act  should  compromise  the 
honor  of  the  officer,  (a)  It  is  only  necessary  that  the  conduct  should  be  such  as  is  at 


once  disgraceful  or  disrepiitable  and  manifestly  unbefitting  both  an  officer  of  the  Army 
and  a  gentleman,  (b)  An  act,  however,  which  is  only  slightly  discreditable  is  not,  in 
practice,  made  the  subject  of  a  charge  under  this  article.  The  article,  in  making  the 
punishment  of  dismissal  imperative  in  all  cases,  evidently  contemplates  that  the  con- 
duct, while  unfitting  the  party  for  the  society  of  men  of  a  scrupulous  sense  of  decency 
and  honor,  shall  exhibit  him  as  unworthy  to  hold  a  commission  in  the  Army.  (Dig. 
Opin.  J.  A.  Gen.,  61.  par.  1.) 

Knowingly  making  to  a  superior  a  false  official  report  held  chargeable  under  this 
article.  So  of  a  deliberately  false  official  certificate  as  to  the  truth  or  correctness  of 
an  official  voucher,  roll,  return,  etc.  So  of  any  deliberately  false  official  statement, 
written  or  verbal,  of  a  material  character.  So  where  an  officer  caused  the  sergeant 
of  the  guard  to  enter  in  the  guard  book  a  false  official  report  that  he  (the  officer)  had 
duly  visited  the  guard  at  certain  hours  as  officer  of  the  day,  when  he  had  in  fact  been 
guilty  of  a  neglect  of  duty  in  this  particular,  and  thereupon  himself  signed  such 
report  and  submitted  it  to  his  post  commander,  held  that  his  conduct  was  charge- 
able as  an  ofiense  under  this  article.  (Ibid.,  62,  par.  2.) 

The  following  acts,  committed  in  a  particular  case,  held  to  be  offenses  within  this 
article  :  Preferring  false  accusations  against  an  officer  ;  attempting  to  induce  an  officer 
to  join  in  a  fraud  upon  the  United  States  ;  attempt  at  subornation  of  perjury.  (Ibid.  , 
par.  3.) 

An  attempt  by  corrupt  means  to  induce  an  officer  to  give  a  vote,  as  a  member  of  a 
post  council  of  administration,  in  favor  of  a  particular  candidate  for  the  tradership 
of  the  post,  held  properly  charged  under  this  article.  (Ibid.,  par.  4.) 

Held  that  a  surgeon  who  appropriated  to  his  own  personal  use  and  to  that  of  his 
private  mess  food  furnished  by  the  Government  for  hospital  patients  was  guilty  of 
an  offense  under  this  article.  (Ibid.,  par.  5.) 

The  violation  by  an  officer  of  a  promise  or  pledge  on  honor  given  by  him  to  a  supe- 
rior, in  consideration  of  the  withdrawal  by  the  latter  of  charges  preferred  for  drunk- 
enness, that  he  would  abstain  for  the  future,  or  for  a  certain  period,  from  the  use  of 
intoxicating  drink,  held  chargeable  under  this  article.  (Ibid.,  par.  6.) 

Where  an  officer  appeared  in  uniform  at  a  theater  drunk,  and  conducted  himself 
in  such  a  disorderly  manner  as  to  attract  the  attention  of  officers  and  soldiers  who 
were  present,  as  well  as  the  audience  generally  ;  held  that  he  was  properly  convicted 
of  a  violation  of  this  article.  (Ibid.,  par.  7.) 

Engaging  when  intoxicated  in  a  fight  with  another  officer  in  the  billiard  room  at  a 
post  trader's  establishment  in  the  presence  of  other  officers  and  of  ciA'ilians,  held  an 
ofl'ense  within  this  article.  So  held  of  an  engaging  in  a  disorderly  and  violent  alterca- 
tion and  fight  with  another  officer  in  a  public  place  at  a  military  post  in  sight  of  officers 
and  soldiers.  So  held  of  an  exhibition  of  himself  by  an  officer  in  a  public  place  in  a 
grossly  drunken  condition.  (Ibid.,  63,  par.  8.) 

Gambling  with  enlisted  men  in  a  public  place  held  an  offense  within  this  article. 
And  so  of  frequenting  in  uniform  a  disreputable  gambling  house  and  gambling  with 
gamesters.  (Ibid.,  par.  9.) 

To  justify  a  charge  under  this  article  it  is  not  necessary  that  the  act  or  conduct 

aG.  0.  25,  Department  of  the  Missouri,  1867. 

&  '  'An  officer  of  the  Army  is  bound  by  the  law  to  be  a  gentleman."  Attorney-General 
Cashing.  6  Opins.,  417.  See  definitions  or  partial  definitions  of  the  class  of  offenses 
contemplated  by  this  article  in  G.  0.  45,  Army  of  the  Potomac,  1864  ;  G.  0.  29,  Depart- 
ment of  California,  1  865  ;  G.  O.  7,  Department  of  the  Lakes,  1872  ;  G.  C.  M.  0.  69,  Depart- 
ment of  the  East,  1870;  G.  C.  M.  0.  41,  Headquarters  of  Array,  1879. 


732  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

Crimes  ana  dis-     ART.  62.  All  crimes  not  capital,  and  all  disorders  and 

orders  to  preju- 
dice of  military  neglects,  which  officers  and  soldiers  may  be  guilty  of,  to 

62  Art.  W»r.  the  prejudice  of  good  order  and  military  discipline,  though 
not  mentioned  in  the  foregoing  articles  of  war,  are  to  be 
taken  cognizance  of  by  a  general,  or  a  regimental,  garri- 
son, or  field-officers'  court-martial,  according  to  the  nature 

of  the  officer  should  he  immediately  connected  with  or  should  directly  affect  the 
military  service.  It  is  sufficient  that  it  is  morally  wrong  and  of  such  a  nature  that, 
•while  dishonoring  or  disgracing  him  as  a  gentleman,  it  compromises  his  character 
and  position  as  an  officer  of  the  Army.  (Ibid.,  par.  10.) 

Thus,  though  a  mere  neglect  on  the  part  of  an  officer  to  satisfy  his  private  pecun- 
iary obligations  will  not  ordinarily  furnish  sufficient  grounds  for  charges  against 
him,  yet  where  the  deht  has  been  dishonorably  incurred— as  where  money  has  been 
borrowed  under  false  promises  or  representations  as  to  payment  or  security,  or 
where  the  nonpayment  has  been  accompanied  by  such  circumstances  of  fraud,  deceit, 
evasion,  denial  of  indebtedness,  etc.,  as  to  amount  to  dishonorable  conduct — the 
continued  nonpayment,  in  connection  with  the  facts  or  circumstances  rendering  it 
dishonorable,  may  properly  be  deemed  to  constitute  an  offense  chargeable  under  this 
article,  (a)  (Ibid.,  par.  11.) 

Where  an  officer,  in  payment  of  a  debt,  gave  his  check  upon  a  bank,  representing 
at  the  same  time  that  he  had  funds  there,  when  in  fact,  as  he  was  well  aware,  he 
had  none;  held  that  ho  was  amenable  to  a  charge  under  this  article.  (Ibid.,  64, 
par.  12.) 

Neglect  or  refusal  to  pay  honest  debts  may  constitute  an  offense  under  this  article 
where  so  repeated  or  persistent  as  to  furnish  reasonable  ground  for  inferring  that 
the  officer  designs  or  desires  to  avoid  or  indefinitely  defei  a  settlement.  This 
especially  where  the  debts  are  due  to  soldiers  for  money  borrowed  from  or  held  in 
trust  for  them.  (Ibid.,  par.  13.) 

An  indifference  on  the  part  of  an  officer  to  his  pecuniary  obligations,  of  so  marked 
and  inexcusable  a  character  as  lo  induce  repeated  just  complaints  to  his  military 
commander  or  the  Secretary  of  War  by  his  creditors,  and  to  bring  discredit  and 
scandal  upon  the  military  service,  held  to  constitute  an  offense  within  the  purview 
of  this  article,  (b)  (Ibid.,  par.  14.) 

Where  certain  officers  of  a  colored  regiment  made  a  practice  of  loaning  to  men  of 
the  regiment  small  amounts  of  money,  for  wbich  they  charged  and  received  in  pay- 
ment at  the  rate  of  two  dollars  for  one  at  the  next  pay  day;  held  thai  they  were 


rbich  they  charged  and  n 
the  next  pay  day ;  held 
icle.  (Ibid., par.  15.) 


properly  convicted  of  a  violation  of  this  article. 

Where  an  officer  stationed  in  Utah  was  married  there  by  a  Mormon  official  to  a 
female,  with  whom  he  lived  as  his  wife,  although  having  at  the  same  time  a  logal 
wife  residing  in  the  States;  held  that  he  might  properly  DO  brought  to  trial  by  gen- 
eral court-martial  for  a  violation  of  this  article.  So  held  of  an  officer  who  committed 
bigamy  by  publicly  contracting  marriage  in  the  United  States  while  having  a  legal 
wife  living  in  Scotland  whom  he  had  abandoned.  (Ibid.,  par.  16.) 

Abusing  and  assaulting  his  wife  by  an  officer  at  a  military  post,  in  so  public  and 
marked  a  manner  as  to  disturb  the  post  and  bring  scandal  upon  the  service,  held 
chargeable  as  an  offense  under  this  article.  (Ibid.,  par.  17.) 

The  institution  by  an  officer  of  fraudulent  proceedings  against  his  wife  for  divorce, 
and  the  manufacture  of  false  testimony  to  be  used  against  her  in  the  suit,  in  connec- 
tion with  an  abandonment  of  her  and  neglect  to  provide  for  her  support,  held  to  con- 
stitute "  conduct  unbecoming  an  officer  and  a  gentleman"  in  the  sense  of  this  article. 
(Ibid. ,65,  par.  18). 

According  to  the  accepted  principle  of  interpretation,  by  which  articles  of  war 
enjoining  a  specific  punishment  or  punishments  arc  held  to  be  in  this  particular 
both  mandatory  and  exclusive,  no  sentence  other  than  one  of  simple  dismissal  can 
legally  be  adjudged  upon  a  conviction  under  this  article.  A  sentence  which  adds  to 
dismissal  any  other  penalty  or  penalties,  as  disqualification  for  office,  forfeiture  of 
pay,  imprisonment,  etc., "is  valid  and  operative  only  as  to  the  dismissal,  and  as  to  the 
rest  should  bo  formally  disapproved  as  being  unauthorized  and  of  no  effect.  (Ibid., 
par.  19.) 

The  following  acts  held  to  constitute  offenses  under  this  article:  Fraudulently 
procuring  a  divorce  from  his  wife,  by  an  officer;  failure  on  the  part  of  an  officer  to 
support  his  wife  and  child,  without  adequate  excuse  therefor;  procuring  or  allowing 
himself,  by  a  retired  officer,  to  be  placed,  by  legal  proceedings,  under  a  conservator 
as  a  habitual  drunkard.  (Ibid.,  par.  20.) 

The  TTse  of  abusive  language  toward  a  commanding  officer  may  constitute  an 
offense  under  this  article.  But,  both  as  a  matter  of  correct  pleading  and  because 
the  twentieth  article  authorizes  a  punishment  less  than  dismissal,  the  language 
should  be  so  particularized  as  to  show  that  it  constituted  an  offense  more  grave  than 
the  mere  disrespect  which  is  the  subject  of  the  latter  article.  A  specification  not  thus 

a  Cases  of  officers  made  amenable  to  trial  by  court-martial,  under  this  article,  for 
the  nonfulfillment  of  pecuniary  obligations  to  other  officers,  enlisted  men,  post  trad- 
ers and  civilians,  are  found  in  the  following  general  orders  of  the  War  Department 
and  Headquarters  of  Army :  No.  87,  of  1866 ;  Nos.  3.  55,  64,  of  1869 ;  No.  1 5,  of  1870 ;  No. 
17,  of  1871;  Nos.  22,46,  of  1872;  No.  10,  of  1873;  Nos.  25,  50,  68,82,  of  1874;  No.  25,  of 
1875;  No.  100,  of  1876;  No.  46,  of  1877. 

6  See,  on  the  subject  of  these  complaints,  the  circular  issued  originally  from  the 
War  Department  (A.  G-.  O.)  on  February  8,  1872,  in  which  the  Secretary  of  War 
"declares  his  intention  to  bring  to  trial  by  court-martial,"  under  the  sixty-first 
article  of  war,  "any  officer  who,  after  due  notice,  shall  fail  to  quiet  such  claims 
against  him." 


THE    MILITARY    LAWS    OF   THE   UNITED    STATES.  733 

and  degree  of  the  offense,  and  punished  at  the  discretion 
of  such  court.1 

That  fraudulent  enlistment  and  the  receipt  of  any  pay 
or  allowance  thereunder,  is  hereby  declared  a  military  of- 
fense and  made  punishable,  by  a  court-martial,  under  the 
62  Article  of  War.  Sec.  2,  act  of  July  27, 1892  (27  Stat.  L., 
277). 

setting  forth  and  characterizing  the  epithets  or  words  employed  will  be  subject  to  a 
motion  to  make  definite  or  strike  out.     (Ibid.,  par.  21.) 

The  mere  acceptance  by  an  officer  of  compensation  from  private  parties  (civilians) 
whom,  by  permission  of  his  superior,  he  assists  in  a  private  undertaking,  though  it 
may  bo  an  indelicate  act,  is  not  an  offense  under  this  article.  Of  the  propriety  of 
such  conduct  an  officer  must  judge  for  himself.  (Ibid.,  par.  22.) 

Jt  is  no  defense  whatever  to  a  charge  under  this  article  that  between  the  date  of 
the  refusal  by  the  United  States  to  pay  the  assignee  of  a  duplicated  voucher  and 
the  date  of  the  arraignment  of  the  officer  or  of  the  service  of  the  charges  the  money 
duo  has  been  paid,  or  somehow  secured  or  made  good  to  the  assignee,  or  that  he  has 
been  induced  to  withdraw  or  suspend  his  claim  against  the  officer,  (a)  (Ibid.,  par.  25.) 

Held  that  a  continued  neglect,  without  adequate  excuse,  to  satisfy  a  pecuniary 
obligation  long  overdue,  after  specific  assurances  given  of  speedy  payment,  was  a 
dishonorable  act  constituting  an  oO'ense  under  this  article.  (J»)  (Ibid.,  par.  2(5.) 

1  The  word  " crimes  "  in  this  article,  distinguished  as  it  is  from  "neglects"  and 
"disorders,"  means  military  offenses  of  a  more  serious  character  than  these,  includ- 
ing such  as  are  also  civil  crimes,  as  homicide,  robbery,  arson,  larceny,  etc.  "  Capi- 
tal" crimes  (i.  c.,  crimes  capitally  punishable),  including  murder,  or  any  grade  of 
murder  made  capital  by  statute,  can  not  be  taken  cognizance  of  by  courts-martial 
under  this  article.  (As  to  the  j  urisdiction  of  courts-martial  in  cases  of  murder,  etc., 
in  time  of  war,  see  art.  58,  supra,  note  )  A  crime  which  is  in  fact  murder,  and 
capital  by  statute  of  the  United  States  or  of  the  State  in  which  committed,  can  not 
be  brought  within  the  jurisdiction  of  a  court-martial  under  this  article  by  charging 
it  as  "manslaughter,  to  the  prejudice,"  etc.,  or  simply  as  "conduct  to  the  prejudice, 
etc.  (c)  If  the  specification  or  the  proof  shows  that  the  crime  was  murder  and  a 
capital  offense,  the  court  should  refuse  to  take  jurisdiction,  or  to  find  or  sentence. 
If  it  assume  to  do  so,  the  proceedings  should  be  disapproved  as  unauthorized  and 
void.  (Dig.  Opin.  J.  A.  Gen.,  p.  67,  par.  1. ) 

The  term  "  to  the  prejudice  of  good  order  and  military  discipline"  qualifies,  ac- 
cording to  tho  accepted  interpretation,  the  word  "  crimes "  as  well  as  the  words 
"disorders  and  neglects."  Thus,  tho  crime  of  larceny  (sometimes  charged  as 
"  theft  "  or  "stealing")  is  held  chargeable  under  this  article  when  it  clearly  affects 
tho  order  and  discipline  of  the  military  service.  Stealing,  for  example,  from  a  fel- 
low soldier  or  from  an  officer  (or  stealing  of  public  money  or  other  public  property 
where  the  offense  is  not  more  properly  a  violation  of  article  60),  is  generally  so 
chargeable.  And  so  of  any  other  crime  (not  capital)  the  commission  of  which  haa 
prejudiced  military  discipline,  as,  for  example,  manslaughter  (or  homicide  not 
amounting  to  murder)  of  a  soldier;  assault  with  intent  to  kill  a  fellow-soldier; 
forgery  of  the  name  of  a  disbursing  or  other  military  officer  to  a  Government 
check  or  draft,  or  forgery  of  an  officer's  name  to  a  check  on  a  bank  (and  thia 
whether  or  not  anything  was  in  fact  lost  by  the  Government  or  the  bank  or  officer) ; 
forgery  in  signing  tho  name  of  a  fellow- soldier  to  a  certificate  of  indebtedness  to  a 
sutler,  or  to  an  order  on  a  paymaster;  embezzlement  or  misappropriation  of  the 
property  of  an  officer  or  soldier.  (Ibid.,  par.  2.) 

Held  that  for  an  officer  to  print  and  publish  to  the  Army  a  criticism  upon  an  offi- 
cial report  made  by  another  officer  in  tho  course  of  his  duty  to  a  common  superior, 
charging  that  such  report  was  erroneous  and  made  with  an  improper  and  interested 
motive,  was  gravely  unmilitary  conduct,  to  the  prejudice  of  good  order  and  military 
discipline.  An  officer  who  deems  himself  wronged  by  an  official  act  of  another  officer 
should  prefer  charges  against  the  latter  or  appeal  for  redress  to  the  proper  superior 
authority.  He  is  not  permitted  to  resort  to  any  form  of  publication  of  his  strictures 
or  grievances.  So  held  that  for  an  officer  to  publish  or  allow  to  bo  published  in  a 
new.'-paper  of  general  circulation  charges  and  insinuations  against  a  brother  officer, 
by  which  his  character  for  courage  and  honesty  is  aspersed  and  he  is  held  up  to 
odium  and  ridicule  before  the  Army  and  community,  was  a  highly  unmilitary  pro- 
ceeding and  one  calling  for  a  serious  punishment  upon  a  conviction  under  this  arti- 
cle, and  this  whether  or  not  the  charges  as  published  were  true.  (Ibid.,  69,  par.  5.) 

Tho  following  offenses  have  been  held  properly  charged  or  chargeable  under  this 
article  as  disorders  or  neglects  "  to  tho  prejudice  of  good  order  and  military  disci- 
pline": Drunkenness  or  drunken  and  disorderly  conduct,  at  a  post  or  in  public,  com- 
mitted by  a  soldier  orofficerwhen  not  "on  duty,"  and  when  the  act  (in  the  caseof  an 
officer)  does  not  more  properly  fall  within  the  description  of  article  61.  Escape  from 
military  confinementorcustody,  where  not  amounting  to  desertion.  Breach  of  arrest, 
whirenotproperly  chargeable  under  article  65.  Malingering.  Disclosing  a  finding  or 

ttHee  the  remarks  of  the  reviewing  authoritv  in  the  cases  published  in  G.  C.  M.  O. 
£•'8  of  1886  and  56  of  1893. 

ft  See  Fletchers.  U.  S.,  26  C.  Cls.R.,  541,562;  U.  S.v.  Fletcher,  148  U.  S.,  84, 91;  Swaim 
o.  U.  S.,  28  Ct.  Ols.,  173,  230. 

c-See  this  opinion,  as  given  in  an  important  case,  adopted  by  the  Secretary  of  War 
in  his  action  on  tho  same  published  in  G.  G.  M.  O.  3,  War  Department,  1871;  also  the 
similar  rulings  in  G.  C.  M.  O.  28,  Department  of  Texas,  1875;  G.  0, 14,  Department  of 
Dakota,  1868 ;  G.  0. 104,  Army  of  the  Potomac,  1862. 


734  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

Retainers  of     ART.  63.  All  retainers  to  the  camp,  and  all  persons  serv- 
caoapArt.  war.    ing  with  the  armies  of  the  United  States  in  the  field, 

sentence  of  a  court-martial  in  contravention  of  the  oath  prescribed  in  article  84  or  85. 
Refusing  to  testify  when  duly  required  to  attend  and  give  evidence  as  a  witness  before 
a  court-martial.  Joining  with  other  inferior  officers  of  a  regiment  in  a  letter  to  the 
colonel  asking  him  to  resign.  Neglecting,  by  a  senior  officer  "present  for  duty"  with 
his  regiment,  to  assume  the  command  of  the  same  when  properly  devolved  upon  him, 
and  allowing  such  command  to  be  exercised  by  a  junior.  Culpable  malpractice  by  a 
medical  officer  in  the  courseof  his  regular  military  duty.  Colluding  with  bounty  bro- 
kers in  procuring  fraudulent  enlistments  to  be  made  and  bounties  to  be  paid  thereon. 
Violations,  by  an  officer,  of  paragraph  587,  Army  Regulations  of  1895,  in  bidding  in 
and  purchasing,  through  anotherparty,  public  property  sold  at  auction  by  himself  as 

Suartermaster ;  also  in  purchasing  subsistence  stores,  ostensibly  for  domestic  use, 
at  really  for  purposes  of  traffic.  (  violations,  indeed,  of  Army  Regulations  in  general 
are  properly  chargeable  under  this  article  as  neglects  or  disorders  to  the  prej  udice 
of  good  order  and  military  discipline.)  Causing,  by  a  quartermaster,  troops  to  be 
transported  upon  a  steamer  known  by  him  to  be  unsafe.  Paying  money  due  umlera 
contract  (for  military  supplies)  to  a  party  to  whom,  with  the  knowledgoof  the  accused, 
the  contract  had  been 'transferred  in  contra A'ention of  section  3737,  Revised  Statutes. 
Inciting,  by  an  officer,  another  officer  to  challenge  him  to  fight  a  duel.  Assuming,  by 
a  soldier,  to  be  a  corporal  in  the  recruiting  service,  and  as  such  enlisting  recruits  and 
obtaining  board  ana  lodging  for  himself  and  recruits  without  paying  for  same.  Pro- 
curing, by  a  soldier,  whisky  from  the  post  trader  by  forging  an  order  for  the  same  in 
the  name  of  a  laundress.  Breach  of  faith,  by  a  soldier,  in  refusing  to  pay  the  post 
trader  for  articles  obtained  on  credit  upon  orders  on  him  which  had  been  guaran- 
teed or  approved  by  the  company  commander  upon  the  condition  that  the  amounts 
should  be  paid  on  the  next  pay  day.  Gambling  by  officers  or  soldiers  under  such 
circumstances  as  to  impair  military  discipline  (where  the  conduct,  in  the  case  of  an 
officer,  does  not  rather  constitute  an  offense  under  article  61).  Striking  a  soldier,  or 
using  any  unnecessary  violence  against  a  soldier,  by  an  officer.  (Ibid.,  69,  par.  6.) 

The  following  acts  or  offenses  have  been  held  to  be  not  properly  chargeable  under 
this  article :  A  mere  breach  of  the  peace  committed  by  a  soldier  (while  absent  alone 
and  at  a  distance  from  his  post)  (a)  in  a  street  of  a  city,  and  in  violation  of  a  municipal 
ordinance.  Pecuniary  transactions  between  enlisted  men  of  a  culpable  character, 
but  in  their  private  capacity  and  not  directly  affecting  the  service  or  impairing  mili- 
tary discipline.  Speculating  and  gambling  in  stocks  by  a  disbursing  officer,  the 
proper  performance  of  whose  military  duty  was  not  affected.  (But  recommended 
that  ho  be  relieved  from  the  duty  of  disbursing  public  money.)  Reenlisting  by  the 
procurement  of  the  recruiting  officer  after  having  been  discharged  for  a  disability 
still  continuing,  the  act  being  in  good  faith  and  the  alleged  offense  being  committed 
before  the  party  could  be  said  to  have  fully  come  into  the  service.  (Ibid.,  71,  par.  7.) 

A  crime,  disorder,  or  neglect,  cognizable  under  this  article,  may  be  charged  either 
by  its  name  simply  as  "larceny,"  "drunkenness,"  "neglect  of  duty,"  etc.,  or  by  its 
name  with  the  addition  of  the  words  "to  the  prejudice  of  good  or'der  and  military 
discipline,"  or  simply  as  "conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline," or  as  "violation  of  the  sixty-second  article  of  war."  It  is  immaterial  in 
which  form  the  charge  is  expressed,  provided  the  specification  sets  forth  facts  con- 
stituting an  act  prejudicial  to  good  order  and  military  discipline.  "Whenever  the 
charge  and  specification  taken  together  make  out  a  statement  of  an  act  clearly  thus 
prejudicial,  etc.,  the  pleading  will  be  regarded  as  substantially  sufficient  under  this 
general  article.  (Ibid.,  72,  par.  8.) 

A  charge  of  "conduct  to  the  prejudice,"  etc.,  with  a  specification  setting  forth 
merely  trials  and  convictions  of  the  accused  for  previous  offenses,  is  not  a  pleading 
of  an  offense  under  this  article,  or  of  any  military  offense.  So  of  a  charge  of  "habit- 
ual drunkenness  to  the  prejudice,"  etc.,  with  a  specification  setting  forth  instances 
in  which  the  accused  has  been  sentenced  for  acts  of  drunkenness.  Such  charges, 
indeed,  are  in  contravention  of  the  principle  that  a  party  shall  not  be  twice  tried  for 
the  same  offense.  So  a  specification  under  the  charge  "conduct  to  the  prejudice," 
etc.,  which  sets  forth  not  a  distinct  offense  but  simply  the  result  of  an  aggregation 
of  similar  offenses,  is  insufficient  in  law.  Where  the  specifications  to  such  a  charge, 
in  a  case  of  an  officer,  set  forth  that  the  accused  was  "frequently"  drunk,  "fre- 
quently" absented  himself  without  authority  from  his  command,  etc.,  held  that 
these  specifications  were  properly  struck  out  by  the  court  on  the  motion  of  the  ac- 
cused. In  such  a  case  the  only  correct  pleading  is  a  general  charge  under  this  arti- 
cle, with  specifications  setting  forth,  each  separately,  some  particular  and  specific 
instance  of  offense.  (Ibid.,  72,  par.  9.) 

Held  that  a  specification  alleging  homicide,  but  not  adding  "with  malice  afore- 
thought," or  in  terms  to  that  effect,  was  a  pleading  of  manslaughter  only  and  thus 
within  this  article.  (Ibid.,  73,  par.  10.) 

Whether  acts  committed  against  civilians  are  offenses  within  this  article  is  a 
question  to  be  determined  by  the  circumstances  of  each  case,  and  in  regard  to  which 
no  general  rule  can  be  laid  down.  If  the  offense  be  committed  on  a  military  reser- 
vation or  other  premises  occupied  by  the  Army,  or  in  its  neighborhood,  so  as  to  be, 
so  to  speak,  in  the  constructive  presence  of  the  Army ;  or  if  committed  by  an  officer 
or  soldier  while  on  duty,  particularly  if  the  injury  is  done  to  a  member  of  the  com- 
munity whom  the  offender  is  specially  required  to  protect ;  or  if  committed  in  the 
presence  of  other  soldiers,  or  while  the  offender  is  in  uniform ;  or  if  the  offender 
uses  his  military  position  or  that  of  a  military  superior  for  the  purpose  of  intimida- 
tion or  other  unlawful  influence  or  object,  the  offense  will  in  general  properly  be 
regarded  as  an  act  prejudicial  to  good  order  and  military  discipline  and  cognizable 
by  a  court-martial  under  this  article.  The  judgment  on  the  subject  of  a  court  of 


a  Offenses  committed  by  a  soldier  while  on  furlough  will  not  in  general  so  directly 
prejudice  military  discipline  as  to  render  him  amenable  to  trial  by  court-martial. 


THE    MILITARY    LAWS    OF    THE   UNITED    STATES.  735 

though  not  enlisted  soldiers,  are  to  be  subject  to  orders, 
according  to  the  rules  and  discipline  of  war.1 

military  officers,  experts  as  to  such  cases,  confirmed  by  the  proper  reviewing  com 
mander,  should  be  reluctantly  disturbed.  (Ibid.,  par.'ll.  See,  also,  MANUAL  FOB 
COURTS-MARTIAL,  p.  JC,  par.  7.) 

The  following  held  instances  of  offenses  cognizable  under  this  article:  Neglect  on 
the  part  of  an  officer  of  engineers  to  oversee  the  execution  of  a  contract  for  a  public 
work  placed  under  his  charge,  the  due  fulfillment  of  such  charge  being  a  military 
duty ;  (a)  a  public  criticism  in  a  newspaper  by  an  officer  of  a  case  which  had  been 
investigated  by  a  court-martial  and  was  awaiting  the  action  of  the  President; 
assuming,  by  an  officer,  to  copyright  as  owner,  and  thus  asserting  the  exclusive 
right  to  publish,  in  an  abridged  form,  the  Infantry  Drill  Regulations,  property  of 
the  United  S  ates,  and  the  formal  official  publication  of  which  had  already  been 
announced  in  orders  by  the  Secretary  of  War;  selling  condemned  military  stores,  by 
an  officer,  without  due  notice,  and  not  suspending  the  sale  when  better  prices  could 

"egulatious; 
mblished 
increase  a 

score,  etc. ;  violation  by  a  soldier  of  a  pledge  given  to  his  commanding  officer  to 
abstain  from  intoxicating  liquors,  on  the  faith  of  which  a  previous  offense  was  con- 
doned ;  bigamy  by  a  ooldier,  committed  at  a  military  post.  (Ibid.,  par.  12.) 

The  following  acts  held  not  to  be  cognizable  aa  offenses  under  this  article :  A  resort 
to  civil  proceedings  by  suit  against  a  superior  officer  on  account  of  acts  done  in  the 
performance  of  military  duty ;  but  held  that,  if  the  verdict  should  be  for  the  defend- 
ant, and  it  should  appear  that  the  suit  was  without  probable  cause  and  malicious,  a 
charge  under  this  article  might  perhaps  be  sustainable.  The  mere  loaning  of  money 
at  usurious  or  excessive  rates  of  interest  by  a  noncommissioned  officer  to  privates, 
unless  it  should  clearly  be  made  to  appear  thatsuch  conduct  promoted  desertions  or 
other  results  prejudicial  to  the  discipline  of  the  command.  (But  aa  the  practice  in 
this  case  had  been  long  continued,  and  was  clearly  demoralizing,  advised  that  the 
noncommissioned  officer  be  summarily  discharged.)  The  becoming  infected  by  a 
soldier  with  a  disease  unfitting  him  for  service,  as  the  result  of  vicious  conduct. 
The  living  in  adultery  by  a  soldier  at  Plattsburg  village,  where  he  was  permitted  to 
reside,  situate  about  a  mile  from  Plattsburg  Barracks.  Advised  in  this  case  that  the 
offender  be  turned  over  to  the  civil  authorities  for  trial  under  the  laws  of  New  York. 
(Ibid.,  74,  par.  13.) 

1  The  accepted  interpretation  of  this  article  is  that  it  subjects  (in  time  of  war)  the 


classes  of  persons  specified  not  only  to  military  discipline  and  government  in  gen- 
so  to  the  jurisdiction  of  courts-martial  (upon  the  theory,  probably,  that 


era!,  \>\\t  also 


they  are  thus  made,  for  the  time  being,  a  part  of  the  Army).  Individuals,  however, 
of  the  class  termed  "retainers  to  the  camp, "  or  officers'  servants  and  the  like,  aa  well  aa 
camp  followers  generally,  have  rarely  been  subjected  to  trial  in  our  service.  For 
breaches  of  discipline  committed  by  them  the  punishment  has  generally  been  expul- 
sion from  the  limits  of  the  camp  and  dismissal  from  employment.  (Dig.  Opin.  J.  A. 
Gen.,  75,  par.  1.) 

The  discipline  authorized  by  the  article  has  mainly  been  applied  to  the  description 
of  "persons  serving  with  the  armies  of  the  United  States  in  the  field  " — that  is  to 
say,  civilians  serving  in  a  quasi-military  capacity  in  connection  with  troops,  in  time 
of  war  and  on  its  theater.  Thua,  during  the  late  war,  civilians  of  the  following 
classes  were,  in  repeated  cases,  held  amenable,  under  this  article,  to  the  military 
jurisdiction,  and  subjected  to  trial  and  punishment  by  courts -martial:  Teamsters 
employed  with  wagon  trains,  watchmen,  laborers,  and  other  employees  of  the  quar- 
termaster, subsistence,  engineer,  ordnance,  provost-marshal,  etc.,  departments ;  am- 
bulance drivers;  telegraph  operators ;  interpreters ;  guides;  paymasters'  clerks; 
veterinary  surgeons;  "contract"  surgeons,  nurses,  and  hospital  attendants ;  con- 
ductors and  engineers  of  railroad  trains  operated  upon  the  theater  of  war  for  mili- 
tary purposes;  officera  and  men  employed  on  Government  transports,  etc.  But  tho 
mere  fact  of  employment  by  the  Government  pending  a  general  war  does  not  render 
tho  civil  employee  so  amenable.  The  employment  must  be  in  connection  with  tho 
army  in  the  field  and  on  the  theater  of  hostilities.  (Ibid.,  par.  2.) 

Held  (June,  1863)  that  the  force  employed  in  the  "ram  fleet"  on  Western  waters 
was  properly  a  contingent  of  the  Army  rather  than  of  tho  Navy,  and  accordingly 
that  civilian  commanders,  pilots,  and  engineers  employed  upon  such  fleet  during 
tho  war  and  before  the  enemy  were  persons  serving  with  the  armies  in  tho  field  in 
the  sense  of  this  article,  and  therefore  amenable  to  trial  by  court-martial.  (Ibid., 
76,  par.  3.) 

Civil  employees  of  the  United  States  serving  with  the  Army  in  the  field  during 
active  warfare  with  hostile  Indian  tribes  held  amenable  to  trial  by  court-ninrtial 
under  this  article.  A  ciA'ilian  who  acted  as  guide  to  a  command  operating  in  a  hostile 
movement  during  an  Indian  war  held  so  triable.  (Ibid.,  par.  4.) 

Thojurisdiction  authorized  by  this  article  cannot  be  extended  to  civilians  em- 
ployed in  connection  with  the  Army  in  time  of  peace,  nor  to  civilians  employed  in 
such  connection  during  the  period  of  an  Indian  war,  but  not  on  the  theater  of  such 
war.  In  view  of  the  limited  theater  of  Indian  wars,  this  exceptional  jurisdiction  is 
to  be  extended  to  civilians,  on  account  of  offenses  committed  during  such  wars,  with 
even  greater  caution  than  in  a  general  war.  (Ibid.,  par.  5.) 

Civilians  can  not  legally  be  subjected  to  military  jurisdiction  by  the  authority  of 
this  article  after  the  war  (whether  general  or  against  Indians),  pe'nding  which  their 
offenses  were  committed,  has  terminated.  The  jurisdiction,  to  be  lawfully  exercised, 
must  bo  exercised  during  the  status  belli.  (Ibid.,  par.  6.) 

A  civil  employee  of  the  United  States  in  time  of  peace  is  most  clearly  not  made ' 
amenable  to  the'military  jurisdiction  and  trial  by  court-martial  by  the  fact  that  he 
is  employed  in  an  office  connected  with  the  administration  of  the  military  branch  of 

a  See  Eunkle  v.  U.  S.,  19  C.  Cls.  Pv.,  411, 412. 


736  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

AH  troops  sub-     ART.  64.  The  officers  and  soldiers  of  any  troops,  whether 
war.  °  inilitiaor  others,  mustered  and  in  pay  of  the  United  States, 


,  c.  shall,  at  all  times  and  in  all  places,  be  governed  by  the 
i  S284V  MarP2  articles  of  war,  and  shall  be  subject  to  be  tried  by  courts- 

i286p.6%V  8  I:T  martial.1 
Arrest  of  offr     ART.  65.  Officers  charged  with  crime2  shall  be  arrested 

cers   accused  or  .  . 

crimes  and  confined  in  their  barracks,  quarters,  or  tents,  and  de- 

prived of  their  swords  by  the  commanding  officer.    And 
any  officer  who  leaves  his  confinement  before  he  is  set  at 
liberty  by  his  commanding  officer  shall  be  dismissed  from 
the  service.3 
Soldiers  ac      ART.  66.  Soldiers  charged  with  crimes  shall  be  confined 

cused  of  crimes. 

66  Art.  War.    until  tried  by  court-martial,  or  released  by  proper  author- 
ity.4  __ 

the  Government.  Such  employment  does  not  make  him  a  part  of  the  military  estab- 
lishment, nor  is  his  offense,  however  nearly  it  may  affect  tho  military  service,  "a 
case  arising  in  the  lam!  forces  "  in  the  sense  of  article  5  of  the  amendments  to  the 
Constitution.  So  held  (June,  1877)  that  a  civilian  clerk  employed  in  lime  of  peace 
in  the  office  of  the  chief  quartermaster  at  San  Francisco  was  manifestly  not  amena- 
ble, under  this  article  or  otherwise,  to  trial  by  court-martial  for  the  embezzlementor 
misapplication  of  Government  funds  appropriated  for  the  Quartermaster  Depart- 
ment. (a)  And  remarked  that  if  this  official  could  be  made  liable  to  such  .jurisdic- 
tion. all  the  male  and  female  clerkscmployedinthe  WarDepartment  might  upon  the 
same  principle  be  held  thus  amenable  for  offenses  against  the  Government  committed 
in  connection  with  their  duties.  And  so  held  in  the  case  of  a  civilian  clerk  em- 
ployed at  Cam])  Robinson,  Nebraska,  charged  with  conspiring  with  contractors  to 
defraud  the  United  States,  the  post  not  being  within  the  theater  of  any  Indian  war 
or  hostilities  pending  at  the  period  of  the  offense,  (ft)  (Ibid.,  77,  par.  7.) 

Held  (April,  1877)  that  superintendents  of  national  crmetcries,  being  nopartof  the 
Army,  but  civilians  (see  section  4874,  Revised  Statutes),  were  clearly  not  amena- 
ble to  military  jurisdiction  or  trial  under  this  articleor  otherwise,  (c)  (Ibid.,  par.  8.) 

1  It  is  a  general  principle,  confirmed  by  this  article,  that  military  offenses  are  not 
territorial  (see  Manual  for  Courts-Martial,  p.  12).    So  held  that  an  officer  who  exhib- 
ited himself  in  an  intoxicated  condition  at  a  public  ball  in  Mexico,  though  not 
present  in  any  military  capacity,  was  amenable  for  his  offense  to  the  jurisdiction  of 
a  court-martial  in  Texas.     (Dig.  Opm.  J.  A.  Gen...  77.    Houston  v.  Moore,  5  Wh..  20. 
See,  also,  note  to  par.  1307  ante.) 

2  The  term  "  crime"  is  here  employed  in  a  general  sense,  referring  to  offenses  of  a 
military  character,  as  well  as  to  those  of  a  civil  character  which  are  cognizable  by 
court-martial,  (d)    An  offense  in  violation  of  this  article  is  only  committed  when  an 
officer,  confined  in  "close  arrest"  to  his  quarters,  leaves  the  same  without  author- 
ity.   A  breach  of  a  mere  formal  arrest,  or  of  any  arrest  not  accompanied  by  confine- 
ment to  quarters,  would  be  an  offense  not  within  this  article,  but  under  article  62. 
(Dig.  Opin.  J.  A.  Gen.,  78,  par.  1.) 

Simply  disobeying  an  order  to  proceed  and  report  in  arrest  to  a  certain  commander 
held  not  an  offense  chargeable  iinder  this  article.  (Ibid.,  par.  2.) 

3  Where  an  officer  in  close  arrest  was  permitted  by  his  commanding  officer  to  Jeave 
temporarily  his  confinement,  held  that  his  delaying  his  return  for  a  brief  period 
beyond  the  time  fixed  therefor  did  not  properly  constitute  an   offense  under  this 
article.     (Ibid.,  par.  3.) 

Though  any  unauthorized  leaving  of  his  confinement  by  an  officer  in  close  arrest  is, 
strictly,  a  violation  of  the  article,  it  would  seem,  in  view  of  the  severe  mandatory 
punishment  prescribed,  that  an  officer  should  not  in  general  be  brought  to  trial  under 
the  same  unless  his  act  was  of  a  reckless  or  deliberately  insubordinate  character. 
(Ibid.,  par.  4.) 

It  is  no  defense  to  a  charge  of  breach  of  arrest  in  violation  of  this  article  that  the 
accused  is  innocent  of  the  offense  for  which  he  was  arrested,  (e)  It  is  a  defense, 
however,  that,  subsequently  to  the  original  confinement,  the  accused  has  been  put  on 
duty  or  allowed  to  go  on  duty,  provided  that,  before  the  breach  assigned,  he  has  not 
been  duly  rearrested  and  reconiined.  (/)  (Ibid.,  par.  5.) 

The  requirement  of  this  article,  that  an  offender  "shall  be  dismissed,"  is  held  to  be 
exclusive  of  any  other  punishment.  A  senteno-  of  dismissal,  with  forfeiture  of  pay, 
is  unauthorized  and  inoperative  as  to  the  forfeiture,  and  as  to  this  should  be  disap- 
proved. (Ibid.,  79,  par.  6.)  See  sixty-first  article.  See  also  the  title  "Arrest  and 
confinement  "  in  the  chapter  entitled^MiLiTAKY  TRIBUNALS. 

4  Soldiers  held  in  military  arrest,  while  they  may  be  subjected  to  such  restraint  as 
may  be  necessary  to  prevent  their  escaping  or  committing  violence,  can  not  legally 

a  See  the  confirmatory  opinion  in  this  case  of  the  Attorney-  General  of  May  15,  1873, 
16  Opins.,  13. 

b  See  opinion,  to  a  similar  effect,  of  the  Attorney  -General  of  Juno  15,  1878,  16 
Opins.,  48. 

cSee,  to  the  same  effect,  the  opinion  of  the  Attorney-General  referred  to  in  notea. 

d  Compare  Wolton  v.  Gavin,  16  Ad.  &  El.,  66,  68;  Simmons,  sec.  360. 

e  Hough  (Practice),  494. 

/Hough  (Precedents),  19. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  737 

ART.  67.  No  provost-marshal,  or  officer  commanding  a    Receiving  pris- 

1  .  oners, 

guard,  shall  refuse  to  receive  or  keep  any  prisoner  com     67  Art-  war. 
mitted  to  his  charge  by  an  officer  belonging  to  the  forces  of 
the  United  States;  provided  the  officer  committing  shall, 
at  the  same  time,  deliver  an  account  in  writing,  signed 
by  himself,  of  the  crime  charged  against  the  prisoner. 

ART.  68.  Every  officer  to  whoso  charge  a  prisoner  is    Report  of  pris- 
committed  shall,  within  twenty-four  hours  after  such  com-    os  Art.  War. 
mitment,  or  as  soon  as  he  is  relieved  from  his  guard,  report 
in  writing,  to  the  commanding  officer,  the  name  of  such 
prisoner,  the  crime  charged  against  him,  and  the  name  of 
the  officer  committing  him  ;  and  if  he  fails  to  make  such 
report,  he  shall  be  punished  as  a  court-martial  may  direct. 

ART.  69.  Any  officer  who  presumes,  without  proper  au-    Releasing  pris- 

,  ,  .  .  .  .     ,    .      ,  .        ,  oner  without  au- 

thority, to  release  any  prisoner  committed  to  his  charge,  or  thorny;  escapes. 
suffers  any  prisoner  so  committed  to  escape,  shall  be  pun- 
ished as  a  court-martial  may  direct.1 
ART.  70.  No  officer  or  soldier  put  in  arrest  shall  be  con-    Duration  of 

L  confinement. 

tinned  in  confinement  more  than  eight  days,  or  until  such    70Art.  war. 
time  as  a  court  martial  can  be  assembled.2 
ART.  71.  When  an  officer  is  put  in  arrest  for  the  purpose   copy  of  charges 

and  time  of  trial. 

of  trial,  except  at  remote  military  posts  or  stations,  the    July  17,1862,0. 

officer  by  whose  order  he  is  arrested  shall  see  that  a  copy  of  595.'  8 

the  charges  on  which  he  is  to  be  tried  is  served  upon  him    n  Art'  War* 

within  eight  days  after  his  arrest,  and  that  he  is  brought 

to  trial  within  ten  days  thereafter,  unless  the  necessities 

of  the  service  prevent  such  trial;  and  then  he  shall  be 

brought  to  trial  within  thirty  days  after  the  expiration  of 

said  ten  days.    If  a  copy  of  the  charges  be  not  served, 

or  the  arrested  officer  be  not  brought  to  trial,  as  herein 

required,  the  arrest  shall  cease.    But  officers  released  from 

arrest,  under  the  provisions  of  this  article,  may  be  tried, 

be  subjected  to  any  punishment;  the  imposition  of  punishment  upon  soldiers  while 
thus  detained  has  been  on  several  occasions  emphatically  denounced  by  department 
commanders,  (a)  (Ibid.,  par.  1.) 

Tho  word  "crimes,  "  as  used  in  this  article,  is  construed  to  mean  serious  military 
offenses.  So  that  a  soldier  will  not  properly  be  '  confined  "  where  not  charged  with 
one  of  the  more  serious  of  the  military  offenses—  in  other  words,  where  charged  only 
with  an  offense  of  a  minor  character.  (Ibid.,  par.  2.)  See  the  title  "Arrest  and  con 
finement"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

'General  Order  16  of  1895,  fixing  the  maximum  punishments,  appoints  different 
limits  of  punishment  for  willfully  and  for  negligently  allowing  an  escape  as  sepa- 
rate offenses.  A  charge  for  suffering  an  escape  under  this  article  should  therefore 
indicate,  in  the  specification,  Avhether  the  act  is  alleged  to  be  willful  or  negligent 
only.  (Ibid.,  par.  1.) 

*  Detaining  soldiers  in  arrest  for  long  and  unreasonable  periods,  when  it  is  practi- 
cable to  bring  them  to  trial,  is  arbitrary  and  oppressive,  and  in  contravention  both 
of  the  letter  and  spirit  of  this  article.  Whether  th.o  delay  in  any  case  is  to  be 
regarded  as  so  far  unreasonable  as  properly  to  subject  the  commander  responsible 
therefor  to  military  charges  or  a  civil  action  must  depend  upon  the  circumstances 
of  the  situation  and  the  exigencies  of  the  service  at  the  time,  (b)  Dig.  Opin.  J.  A. 
Gen.,  80.  See  the  title  "Arrest  and  confinement,'  in  the  chapter  entitled  MILITARY 
TRIBUNALS. 


,  for  example,  the  remarks  of  such  commanders  in  G.  O.  23,  Department  of  the 
East,  1863;  G.  O.  26,  Department  of  California,  1866;  G.  O.  23,  Department  of  the 
Lakes,  1870;  G.  O.  106,  Department  of  Dakota,  1871.    And  compare  remarks  of  Jus- 
tice Story  in  Steero  v.  Field,  2  Mason,  516. 
&  Compare  Blake's  Case,  2  Maule  &.  Sel.,  428;  Bailey  v.  Warden,  4  ibid.,  400. 

1919  -  47 


738  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

whenever  the  exigencies  of  the  service  shall  permit,  within 
twelve  months  after  such  release  from  arrest.1 

oTn?°  "ne/ai     ART.  72.  Any  general  officer  commanding  an  army,  a  ter- 
courts-martiai.    ritorial  division  or  a  department,  or  colonel  commanding  a 

May  29,  1830,  v.  .' 

4,  p.  417;  July  5,  separate  department,  may  appoint  general  courts-martial 
18?  2  Art!'  war.1'  whenever  necessary.  But  when  any  such  commander  is 
the  accuser  or  prosecutor  of  any  officer  under  his  com- 
mand, the  court  shall  be  appointed  by  the  President,  and 
its  proceedings  and  sentence  shall  be  sent  directly  to  the 
Secretary  of  War,  by  whom  they  shall  be  laid  before  the 
President  for  his  approval  or  orders  in  the  case.2  Act  of 
July  5,  1884  (23  Stat.  L.,  121). 

who  may  ap-     ART.  73.  In  time  of  war  the  commander  of  a  division, 
coirts  martial  in  or  of  a  separate  brigade  of  troops,  shall  be  competent  to 


.  appoint  a  general  court-martial.      But  when  such  com- 
1273'lrt'.  War.    manner  is  the  accuser  or  prosecutor  of  any  person  under 
his  command,  the  court  shall  be  appointed  by  the  next 
higher  commander.3 

1  Though  an  officer,  in  whose  case  the  provisions  of  tins  article  in  regard  to  serv- 
ice of  charges  and  trial  have  not  been  complied  with,  is  entitled  to  be  released  from 
arrest,  he  is  not  authorized  to  release  himself  therefrom.  If  he  be  not  released  in 
accordance  with  the  article,  he  should  apply  for  his  discharge  from  arrest,  through 
the  proper  channels,  to  the  authority  by  whose  order  the  arrest  was  imposed,  or 
other  proper  superior.  (Dig.  Opin.  J.  A.  Gen.,  80.  par.  1.) 

The  term  "within  ten  days  thereafter"  held  to  mean  after  his  arrest.  (Ibid., 
par.  2.) 

Held  a  sufficient  compliance  with  the  requirement  as  to  the  service  of  charges  to 
have  served  a  true  copy  of  the  existing  charges  and  specifications,  though  the  list 
of  witnesses  appended  to  the  original  charges  was  omitted,  and  though  the  charges 
themselves  were  not  in  sufficient  legal  form,  and  were  intended  to  be  amended  and 
redrawn.  (Ibid.,  81.  par.  3.) 

The  fact  that  cases  of  officers  put  in  arrest  "at  remote  military  posts  or  stations  " 
are  excepted  from  the  application  of  the  article  does  not  authorize  an  abuse  of  the 
power  of  arrest  in  these  cases.  And  where,  in  such  a  case,  an  arrest,  considering 
the  facilities  of  communication  with  the  department  headquarters  and  other  circum- 
stances, was  in  fact  [unreasonably  protracted  without  trial,  held  that  the  officer  was 
entitled  to  be  released  from  arrest  upon  a  proper  application  submitted  for  the  pur- 
pose. (Ibid.,  par.  4  )  See  also  note  1  to  article  69,  supra. 

"See  the  title  "Constitution  and  composition  of  general  courts-martial,"  in  the 
chapter  entitled  MILITARY  TRIBUNALS. 

Prior  to  the  amendment  of  this  article  by  the  act  of  July  5,  1884,  a  colonel  com- 
ma! ding  a  department  was  not  authorized,  as  such,  to  convene  a  general  court; 
otherwise,  however,  of  a  colonel  assigned  by  the  President  to  the  command  of  a 
department  according  to  his  brevet  rank  of  brigadier  or  major  general.  (Dig.  Opin. 
J.  A.  Gen.,  82,  par.  4.) 

The  objection  that  the  convening  commander  was  the  "accuser"  or  "prosecutor" 
of  the  accused,  being  one  going  to  the  legal  constitution  of  the  court,  may  be  raised 
before  the  court  at  any  stage  of  its  proceedings.  (Or  it  may  be  taken  to  thereview- 
ing  officer  with  a  view  to  his  disapproving  the  proceedings,  or  may  be  made  to  the 
President,  after  the  approval  and  execution  of  the  sentence,  with  a  view  to  having 
the  same  declared  invalid,  or  to  the  obtaining  of  other  appropriate  relief.)  Regu- 
larly, however,  the  objection,  if  known  or  believed  to  exist,  should  be  taken  at  or 
before  the  arraignment.  If  the  objection  is  not  admitted  by  the  prosecution  to 
exist,  the  accused  is  entitled  to  prove  it  like  any  other  issue.  (Ibid.,  84,  par.  8.) 

The  provision  of  this  article  (and  of  article  73)  that  when  the  convening  com- 
mander is  "accuser  or  prosecutor  "  the  court  shall  be  convened  by  the  President  or 
"next  higher  commander,"  being  expressly  restricted  to  general  courts,  has,  of 
course,  no  application  to  regimental  or  garrison  courts.  (But  see  Summary  court.) 
The  same  principle,  however,  will  properly  be  applied  to  proceedings  before  these 
courts  if  it  can  be  done  without  serums  embarrassment  to  the  service.  (Ibid.,  par.  9.) 

A  general  court-martial,  convened  by  the  division  commander  (a  major-general) 
duly  acting  as  department  commander  in  the  absence  of  the  regular  'department 
commander,  is  legally  convened  by  a  general  officer  commanding  a  department  in  the 
sense  of  this  article.  (Ibid.,  par.  10.) 

The  mere  fact  that  a  general  court-martial  is  convened  by  a  department  com- 
mander does  not  make  such  commander  an  "accuser  or  prosecutor"  in  the  sense  of 
this  article,  (a)  A  department  commander  is  not  an  "accuser  or  prosecutor"  when, 
upon  information  of  misconduct  duly  laid  before  him,  he  orders  the  acting  judge- 
advocate  of  the  department  or  the  colonel  commanding  the  regiment  to  proceed 
to  bring  the  offender  to  trial,  this  being  a  part  of  his  due  and  regular  supervision  and 
command.  (Ibid.,  par.  11.) 

3  See  note  1,  to  article  72,  supra. 

a  See  16  Opin.  Att.  Gen.,  109. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  739 

ART.  74.  Officers  who  may  appoint  a  court-martial  shall  ca'tegdge"advo" 
be  competent  to  appoint  a  judge-advocate  for  the  same.1       7*  ^rt-  War- 

That  whenever  a  court-martial  shall  sit  in  closed  session 
the  judge-advocate  shall  withdraw,  and  when  his  legal 
advice  or  his  assistance  in  referring  to  recorded  evidence 
is  required  it  shall  be  obtained  in  open  court.  Sec.  2,  act 
of  July  27,  1892  (27  Stat.  L.,  278). 

ART.  75.  General  courts-martial  may  consist  of  any  num- 
ber  of  officers  from  five  to  thirteen,  inclusive;   but  theym^jjj.  War 
shall  not  consist  of  less  than  thirteen  when  that  number 
can  be  convened  without  manifest  injury  to  the  service.2 

ART.  76.  When  the  requisite  number  of  officers  to  form  ^^Satt 
a  general  court-martial  is  not  present  in  any  post  orp°«J-Art  War 
detachment,  the  commanding  officer  shall,  in  cases  which 
require  the  cognizance  of  such  a  court,  report  to  the  com- 
manding officer  of  the  department,  who  shall,  thereupon, 
order  a  court  to  be  assembled  at  the  nearest  post  or  depart- 
ment at  which  there  may  be  such  a  requisite  number  of 
officers,  and  shall  order  the  party  accused,  with  necessary 
witnesses,  to  be  transported  to  the  place  where  the  said 
court  shall  be  assembled. 

ART.  77.  Officers  of  the  Regular  Army  shall  not  be  com-    Regular  offi- 

J  cers;    on     what 

petent  to  sit  on  courts-martial  to  try  the  officers  or  sol-  courts  may  sit. 
diers  of  other  forces,  except  as  provided  in  Article  78.3 

ART.  78.  Officers  of  the  Marine  Corps,  detached  for  serv-  R^u11ari 
ice  with  the  Army  by  order  of  the  President,  may  be  ass°-ciS;ede  on 


elated  with  officers  of  the  Regular  Army  on  courts-martial    ^  Art.  war. 

.  June  30,   1834, 

for  the  trial  of  offenders  belonging  to  the  Regular  Army,  c.  132,  s.  2,  v.  4,  p. 
or  to  forces  of  the  Marine  Corps  so  detached;  and  in  such 
cases  the  orders  of  the  senior  officer  of  either  corps,  who 
may  be  present  and  duly  authorized,  shall  be  obeyed.3 
ART.  79.  Officers  shall  be  tried  only  by  general  courts-    officers  triable 

J      Jt  by     general 

martial,  arid  no  officer  shall,  when  it  can  be  avoided,  be  courts-martial. 
tried  by  officers  inferior  to  him  in  rank.4 

1  See  the  title  "Judge-advocate,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

2Where,  in  the  course  of  a  trial,  the  number  of  the  members  of  a  general  court- 
martial  is  reduced  by  reason  of  absence,  challenge,  or  the  relieving  of  members,  the 
court  may  legally  proceed  with  its  business  so  long  as  five  members,  the  minimum 
quorum,  remain;  otherwise  where  the  number  is  thus  reduced  below  five.  (Dig. 
Opin.  J.  A.  Gen.,  87,  par.  3.) 

While  a  number  of  members  less  than  five  can  not  be  organized  as  a  court  or  pro- 
ceed with  a  trial,  they  may  perform  such  acts  as  are  preliminary  to  the  organization 
and  action  of  the  court.  Less  than  five  members  may  adjourn  from  day  to  day,  and 
where  five  are  present  and  one  of  them  is  challenged,  the  remaining  four  may 
determine  upon  the  sufficiency  of  the  objection.  (Ibid.,  par.  4.) 

A  court  reduced  to  four  members,  and  thereupon  adjourning  for  an  indefinite 
period,  does  not  dissolve  itself.  In  adjourning  it  should  report  the  facts  to  the  con- 
vening authority  and  await  his  orders.  He  may  at  any  time  complete  it  by  the  addi- 
tion of  a  new  member  or  members  and  order  it  to  reassemble  for  business.  (Ibid., 
88,  par.  5.) 

Where  a  court,  though  reduced  by  the  absence  of  members,  operation  of  challenges, 
etc.,  to  below  five  members,  yet  proceeds  with  and  concludes  the  trial,  its  further  pro- 
ceedings, including  its  finding  and  sentence  (if  any),  are  unauthorized  and  inoper- 
ative. (Ibid.,  par.  C.) 

3  See  note  1.  article  72,  supra. 

4  Whether  the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be  avoided  or 
not  is  a  question  not  for  the  accused  or  the  court,  but  for  the  officer  convening  the 


740      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

Field  officers'     ART.  80.  In  time  of  war  a  field  officer  may  be  detailed 
July  17,  1862,  ju  every  regiment,  to  try  soldiers  thereof  for  offenses  not 

c.  201,  s.7,  v.  12,  -JIT. 

P.  598.  capital  j  and  no  soldier,  serving  with  his  regiment  shall 

be  tried  by  a  regimental  l  garrison  court-martial  when  a 
field  officer  of  his  regiment  may  be  so  detailed.2 

Regimental  ART.  81.  Every  officer  commanding  a  regiment  or  corps 
July  17,  1862,  c.  shall,  subject  to  the  provisions  of  article  eighty,  be  compe- 

5981.  '  '  {-en£  £0  app0jnt?  for  his  own  regiment  or  corps,  courts-mar- 
tial, consisting  of  three  officers,  to  try  offenses  not  capital.3 


ART.  82.  Every  officer  commanding  a  garrison,  fort,  or 
other  place,  where  the  troops  consist  of  different  corps,  shall, 

598  ;  .r  6D.  18,  Io75, 

v.  is,  p.  318.       subject  to  the  provisions  of  article  eighty,  be  competent  to 

appoint,  for  such  garrison  or  other  place,  courts  martial, 

consisting  of  three  officers,  to  try  offenses  not  capital.4 

jurisdiction  of     ART.  83.  Regimental  and   garrison  courts-martial,  and 

?egfmontai?eami  field-  officers  detailed  to  try  offenders,  shall  not  have  power 

gajTiiy°i7?i862?c.  to  try  capital  cases  or  commissioned  officers,  or  to  inflict  a 

UJ'  s-  7>  Vt  12'  p-  fine  exceeding  one  month's  pay,  or  to  imprison  or  put  to 

83  Art.  war.    narc[  labor  any  non-cominissioned  officer  or  soldier  for  a 

longer  time  than  one  month.4 
Oath  of  mem-     ART.  84.  The   judge-advocate  shall  administer  to  each 

bers    of    courts- 

mardaL  ^  member  of  the  court,  before  they  proceed  upon  any  trial, 
27,  p/278.'  the  following  oath,  which  shall  also  be  taken  by  all  mem- 
bers of  regimental  and  garrison  courts-martial  :  "  You,  A  B, 
do  swear  that  you  will  well  and  truly  try  and  determine, 
according  to  evidence,  the  matter  now  before  you,  between 
the  United  States  of  America  and  the  prisoner  to  be  tried, 
and  that  you  will  duly  administer  justice,  without  partiality, 
favor,  or  affection,  according  to  the  provisions  of  the  rules 
and  articles  for  the  government  of  the  armies  of  the  United 
States,  and  if  any  doubt  should  arise,  not  explained  by  said 
articles,  then  according  to  your  conscience,  the  best  of  your 

court;  and  his  decision  (as  indicated  by  the  detail  itself  as  made  in  the  convening 
order)  upon  this  point,  as  upon  that  of  the  number  of  members  to  be  detailed,  is 
conclusive.  (See  seventy-fifth  article.)  An  officer,  therefore,  can  not  successfully 
challenge  a  member  because  merely  of  being  of  a  rank  inferior  to  his  own.  (See 
eighty-eighth  article.)  (Dig.  Opin.  J.  A.  Gen.,  89,  par.  1.) 

The  statement  sometimes  added  in  orders  convening  courts-martial  to  the  effect 
that  "no  officers  other  than  those  named  can  be  detailed  without  injury  to  the  serv- 
ice" is  as  superfluous  and  unnecessary  for  the  purpose  of  excusing  the  detailing 
of  officers  junior  to  the  accused  as  it  is  for  accounting  for  the  fact  that  less  than 
the  maximum  number  have  been  selected  for  the  court.  (See  seventy-fifth  article.) 
(Ibid.,  par.  2.) 

At  the  opening  of  a  trial  by  court-martial  it  was  objected  by  the  accused  that  nine 
of  the  thirteen  members  as  detailed  were  his  inferiors  in  rank,  and  that  the  detail- 
ing of  such  inferiors  could  have  been  "avoided"  without  prejudice  to  the  service. 
Held  that  the  objection  was  properly  overruled  by  the  court.  Whether  such  a 
detail  "can  be  avoided"  is  a  question  to  be  determined  by  the  convening  authority 
alone,  and  one  upon  which  his  determination  is  conclusive,  (a)  (Ibid.,  par.  3.) 

1  The  word  or  omitted  from  the  roll. 

2  See  the  title  "Field  officers'  court,  '  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

3  See  the  title  ".Regimental  courts-martial,  1;   in  the  chapter  entitled  MILITARY 
TRIBUNALS. 

4  See  the  titles  "Field  officers'  courts  "and  "The  summary  court,"  in  the  chapter 
entitled  MILITARY  TRIBUNALS. 

a  See  Mullan  v.  TJ.  S.,  140  TJ.  S.,  240. 


THE   MILITARY    LAWS    OF    THE    UNITED    STATES.  741 

understanding,  and  the  custom  of  war  in  like  cases  ;  and 
you  do  further  swear  that  you  will  not  divulge ]  the  sen- 
tence of  the  court  until  it  shall  be  published  by  the  proper 
authority,  except  to  the  judge-advocate;  neither  will  you 
disclose  or  discover  the  vote  or  opinion  of  any  particular 
member  of  the  court-martial,  unless  required  to  give  evi- 
dence thereof,  as  a  witness,  by  a  court  of  justice,2  in  a  due 
course  of  law.  So  help  you  God."3  Act  of  July  27,  1892 
(27  Stat.  L.,  278). 

ART.  85.  When  the  oath  has  been  administered  to  the  J*££ judge' 
members  of  a  court-martial,  the  president  of  the  court  shall    85  Art* War- 
administer  to  the  judge-advocate,  or  person  officiating  as 
such,  an  oath  in  the  following  form: 

u  You,  A  B,  do  swear  that  you  will  not  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  the 
court-martial,  unless  required  to  give  evidence  thereof,  as 
a  witness,  by  a  court  of  justice,  in  due  course  of  law;  nor 

1  The  only  case  which  has  been  met  with  in  which  the  members  of  a  court-martial 
have  been  required  to  disclose  their  votes  by  the  process  of  a  civil  court  is  that  of  In  re 
Mackenzie,  1  Pa.  Law  J.  E,.,  356,  in  which  the  members  of  a  naval  court  martial  were 
compelled,  against  their  objections,  to  state  their  votes  as  given  upon  the  findings  at 
a  particular  trial. 

8  In  the  present  corresponding  British  article  the  words  "  or  a  court-martial "  are 
added  after  the  words  "a  court  of  justice." 

••This  article  makes  the  administering  to  the  court  of  the  form  of  oath  thereby  pre- 
scribed an  essential  preliminary  to  its  entering  upon  a  trial,  (a)  Until  the  oath  is 
taken  as  specified,  the  court  is  not  qualified  "to  try  and  determine."  The  arraign- 
ment of  a  prisoner  and  reception  of  his  plea— which  is  the  commencement  of  the 
trial— before  the  court  is  sworn,  is  without  legal  effect.  The  article  requires  that 
the  oath  shall  be  taken  not  by  the  court  as  a  whole,  but  by  "each  member.  Where, 
therefore,  all  the  members  are  sworn  at  the  same  time,  the  judge  advocate  will  pref- 
erably address  each  member  by  name,  thus:  "You,  A  B,  C  D,  E  F,  etc.,  do  swear," 
etc.  A  member  added  to  the  court,  after  the  members  originally  detailed  have  been 
duly  sworn,  should  be  separately  sworn  by  the  judge-advocate  In  the  full  form  pre- 
scribed by  the  article;  otherwise  he  is  not  qualified  to  act  as  a  member  of  the  court. 
A  member  who  prefers  it  may  be  affirmed  instead  of  sworn.  (See  section  1,  Revised 
Statutes.)  (Dig.  Opin.  J.  A.  Gen.,  96,  par.  1.) 

The  members  are  sworn  to  try  and  determine  the  matter  before  them  at  the  time 
of  the  administering  of  the  oath.  In  a  case,  therefore,  where,  after  the  court  had 
been  sworn  and  the  accused  had  been  arraigned  and  had  pleaded,  an  additional 
charge,  setting  forth  a  new  and  distinct  offense,  was  introduced  into  the  case,  and  the 
accused  was  tried  and  convicted  upon  the  same,  held  that  as  to  this  charge  the  pro- 
ceedings were  fatally  defective,  the  court  not  having  been  sworn  to  try  and  deter- 
mine such  charge.  (6)  Ibid.,  p.  97,  par.  2. 

It  is  a  departure  from  the  engagement  expressed  in  the  body  of  the  oath— to  try 
and  determine  according  to  evidence,  and  administer  justice  according  to  the  Articles 
of  War,  etc.— for  a  court-martial  to  determine  a  case  either  upon  personal  knowledge 
of  Ihe  facts  possessed  by  the  members  and  not  put  in  evidence,  or  according  to 
the  private  views  of  justice  of  the  members  independently  of  the  provisions  of  the 
code,  (c)  (Ibid.,  par.  3.) 

Where  the  vote  of  each  member  of  the  court  upon  one  of  several  specifications 
upon  which  the  accused  was  tried  was  stated  in  the  record  of  trial,  held  that  such 
statement  was  a  clear  violation  of  the  oath  of  the  court,  though  it  did  not  affect  the 
validitv  of  the  proceedings  or  sentence.  A  statement  in  the  record  of  trial  to  the 
effect .that  all  the  members  concurred  in  the  finding  or  in  the  sentence,  while  it  does 
not  vitiate  the  proceedings  or  sentence,  is  a  direct  violation  of  the  oath  prescribed 
by  this  article.  (See  sixty-second  article.)  (Ibid.,  par.  4.) 

The  disclosing  of  the  finding  and  sentence  to  a  clerk  by  permitting  him  to  remain 
with  the  court  at  the  final  deliberation  and  enter  the  judgment  in  the  record  is  a 
violation  of  the  oath  and  a  grave  irregularity,  though  one  which  does  not  affect  the 
validity  .of  the  proceedings  or  sentence.  (Ibid.,  98,  par.  5.) 

The  words  "a  court  or  justice"  are  deemed  to  mean  a  civil  or  criminal  court  of 
the  United  States,  or  of  a  State,  etc.,  and  not  to  include  a  court-martial.  A  case  can 
hardly  be  supposed  in  which  It  would  become  proper  or  desirable  for  a  court-martial 
to  inquire  into  the  votes  or  opinions  given  inclosed  court  by  the  members  of  another 
similar  tribunal.  (Ibid.,  par.  6.) 

aSee  in  this  connection,  G,  O.  15,  H.  A.,  1880,  which,  in  directing  that  judge- 
adA7ocates  shall  be  detailed  for  regimental  and  garrison,  as  well  as  general,  courts-  . 
martial,  rescinds  G.  O.  49  of  1871,  prescribing  a  special  form  of  oath  for  the  former 
courts,  and  thus  provides  for  their  taking  the  duo  and  regular  oath  recited  in  article  84. 

fcSee  G.  C.  M.  O.  39,  War  Department,  1867;  G.  O.  13,  Northern  Department,  1864. 

c  Compare  G.  0.  21,  Department  of  the  Ohio,  1866;  G.  C.M.O.41,  Department  of 
Texas,  1874. 


742  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

divulge  the  sentence  of  the  court  to  any  but  the  proper 
authority,  until  it  shall  be  duly  disclosed  by  the  same.  So 
help  you  God." 

Contempts  of     ART.  86.  A  court- martial  may  punish,  at  discretion,  any 

c°86  Art.  War.    person  who  uses  any  menacing  words,  signs,  or  gestures,  in 

its  presence,  or  who  disturbs  its  proceedings  by  any  riot 

or  disorder.1 

Behavior  of     ART.  87.  All  members  of  a  court-martial  are  to  behave 

members. 

87  Art.  war.    with  decency  and  calmness. 

Challenges  by     ART.  88.  Members  of  a  court-martial  may  be  challenged 

prisoner. 

88  Art.  War.    by  a  prisoner,  but  only  for  cause  stated  to  the  court.    The 

court  shall  determine  the  relevancy  and  validity  thereof, 
and  shall  not  receive  a  challenge  to  more  than  one  member 
at  a  time.2 

1  The  power  of  a  court-martial  to  punish,  under  this  article,  being  confined  practi- 
cally to  acts  done  in  its  immediate  presence,  (a)  such  a  court  can  have  no  authority 
to  punish,  as  for  a  contempt,  a  neglect  by  an  officer  or  soldier  to  attend  as  a  witness 
in  compliance  with  a  summons.  (l>)     (Ibid.,  98,  par.  1.) 

A  court  martial  has  none  of  tho  common-law  power  to  punish  for  contempt  vested 
in  the  ordinary  courts  of  justice,  but  only  such  authority  as  is  given  it  by  this  arti- 
cle. Thus,  held  that  a  court-martial  would  not  be  authorized  to  punish,  as  for  a 
contempt,  under  this  article  (or  otherwise),  a  civilian  witness  duly  summoned  and 
appearing  before  it,  but,  when  put  on  tho  stand,  declining  (without  disorder)  to 
testify.  (Ibid.,  99,  par.  2.).  See,  also,  18  Opin.  Atty.  Gen.,  278. 

Where  a  contempt  within  the  description  of  this  article  has  been  committed,  and 
the  court  deems  it  proper  that  the  offender  shall  be  punished,  the  proper  course  is 
to  suspend  the  regular  business,  and  after  giving  the  party  an  opportunity  to  be 
heard,  explain,  etc.,  (c)  to  proceed,  if  the  explanation  is  insufficient,  to  impose  a 
punishment,  resuming  thereupon  the  original  proceedings.  The  action  taken  is 
properly  summary,  a  formal  trial  not  being  called  for.  Close  confinement  in  quarters 
or  in  the  guardhouse  during  the  trial  of  the  pending  case,  or  forfeiture  of  a  reason- 
able amount  of  pay,  has  been  the  more  usual  punishment.  Instead  of  proceeding 
against  a  military  person  for  a  contempt  in  the  mode  contemplated  by  this  article, 
the  alternative  course  may  be  pursued  of  bringing  him  to  trial  before  a  new  court 
on  a  charge  for  a  disorder  under  article  62.  (d)  (Ibid.,  par.  3.) 

2  This  article  authorizes  the  exercise  of  the  right  of  challenge  before  all  courts 
except  field  officers'  courts  and  summary  courts.     These  courts  are  not  subject  to 
be  challenged,  because,  being  composed  of  but  one  member,  there  is  no  authority 
provided  which  is  competent  to  pass  upon  the  validity  of  the  challenge.    (Dig.  Opin. 
J.  A.  Gen.,  99,  par.  1.) 

It  is  ordinarily  a  sufficient  ground  of  challenge  to  a  member  that  he  is  the  author 
of  the  charges  and  is  a  material  witness  in  the  case.  The  mere  fact  that  he  is  to  be 
a  witness  is  not  in  general  to  be  held  sufficient.  (Ibid.,  100,  par.  2.) 

The  mere  fact  that  a  member  signed  or  formally  preferred  the  charges  is  not  suffi- 
cient ground  of  objection,  since  he  may  have  done  so  ministerially  or  by  the  order 
of  a  superior.  But  where  a  member,  upon  investigation  or  otherwise,  has  initiated  or 
preferred  the  charges  as  accuser,  or  as  prosecutor  has  caused  them  to  be  brought  to 
trial,  he  is  properly  subject  to  challenge.  Thus,  that  a  member  had  originated  and 
preferred  the  charge  for  a  disobedience  of  his  own  order  was  held  good  cause  of 
challenge.  So,  in  a  case  of  a  trial  for  an  assault  upon  an  officer,  the  fact  that  the 
officer  upon  whom  the  assault  was  committed,  and  who  was  the  prosecuting  witness, 
was  a  member  of  the  court  was  held  to  constitute  complete  cause  of  challenge  to 
him  as  member.  (Ibid.,  par.  3.) 

That  a  member  is  the  regimental  or  company  commander  of  the  accused  does  not 
per  se  constitute  sufficient  ground  of  challenge.  But  such  ground  may  exist  where 
the  commander  has  preferred  the  charges  or  where  the  relations  between  him  and 
the  accused  have  been  such  as  to  give  rise  to  a  presumption  of  prejudice.  (Dig;. 
Opin.,  J.  A.  Gen.,  99,  par.  4.) 

Where  a  member,  before  the  trial,  had  expressed  an  opinion,  based  upon  a  knowl 
edge  of  the  facts,  that  the  accused  would  be  convicted  whichever  way  he  migbt 
plead,  held  that  lie  had  clearly  prejudged  the  case  and  that  the  court  should  have 
sustained  an  objection  taken  to  him  by  the  accused,  although  upon  being  challenged 
he  declared  that  he  was  without  prejudice,  (c)  (Ibid.,  par.  5.).  In  re  Bird,  2,  Saw- 
yer, 33. 

A  member,  on  being  challenged  for  prejudice,  declared  that  he  did  not  consider 

a  It  was  held  by  the  Secretary  of  War  in  th  e  case  of  Lieutenant-Colonel  Backenstos 
(G.  O.  14,  War  Department,  1850)  that  a  court-martial  had,  under  this  article,  no 
power  to  punish  its  own  members. 

6  As  to  the  power  of  courts  of  inquiry  to  punish  for  contempt,  see  one  hundred 
and  fifteenth  article  and  note. 

c  See  G.  C.  M.  O.  37,  Fourth  Military  District,  1868. 

d  Compare  Samuel,  634;  Simmons,  section  434.  The  latter  course  has  not  unfre- 
quently  been  adopted  in  our  practice. 

eSee  this  opinio  as  adopted  by  tbe  President  in  G.  C.  M.  O.  66,  Headquarters  of 
Army,  1879, 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  743 

ART.  89.  When  a  prisoner,  arraigned  before  a  general  inp™°tueer stand- 
court-  martial,  from  obstinacy  and  deliberate  design,  stands    $9  Ar*.  War. 
mute,  or  answers  foreign  to  the  purpose,  the  court  may  pro- 
ceed to  trial  and  judgment,  as  if  the  prisoner  had  pleaded 
not  guilty. 

ART.  90.  The  judge-advocate,  or  some  person  deputed  ca^dp^8eac^o°r- 
by  him,  or  by  the  general  or  officer  commanding  the  Army,  p"f80^"nsel  for 
detachment,  or  garrison,  shall  prosecute  in  the  name  of  the    90  Art.  War. 
United  States,  but  when  the  prisoner  has  made  his  plea, 
he  shall  so  far  consider  himself  counsel  for  the  prisoner  as 
to  object  to  any  leading  question  to  any  of  the  witnesses, 
and  to  any  question  to  the  prisoner,  the  answer  to  which 
might  tend  to  criminate  himself. 

the  accused  (an  officer)  a  gentleman,  and  would  not  associate  with  him,  and  that  he 
had  stated  so;  but  he  added  at  the  same  time  that  he  was  not  prejudiced  for  or 
against  him.  Eeld,  especially  as  one  ot  the  charges  was  "conduct  unbecoming  an 
officer  and  a  gentleman,"  that  the  challenge  was  improperly  overruled  by  the  court. 
(Ibid.,  par.  6.) 

It  is  not  good  ground  of  challenge  to  a  member  that  he  is  junior  in  rank  to  the 
accused,  nor  is  it  sufficient  ground  that  the  member  will  gain  a  step  or  "  file  '  in  the 
line  of  promotion  if  the  accused  is  dismissed.  It  is,  however,  a  sufficient  cause  of 
challenge  to  a  member  that  if  the  accused  (an  officer)  be  convicted  and  sentenced 
to  be  dismissed,  the  member  will  be  forthwith  entitled  to  promotion.  (Ibid.,  101, 
par.  7.) 

Held  sufficient  ground  of  challenge  to  a  member  of  a  court-martial  that  he  had  pre- 
viously taken  part  in  an  investigation  of  the  sam-i  case  before  a  court  of  inquiry, 
though  such  court  did  not  express  a  formal  opinion.  (Ibid.,  |>ar.  8.) 

Hf'ld  good  ground  of  challenge  to  a  member  of  a  court  martial  in  a  case  of  alleged 
thei't  by  a  soldier  that  such  member  had  been  a  member  of  a  previous  court  of  in- 
quiry which  had  investigated  the  case  and  fixed  the  misappropriation  of  the  property 
upon  the  accused.  (Ibid.,  par.  9.) 

Held  that  the  members  of  a  court  martial  who  had  composed  a  previous  court  by 
which  the  same  accused  had  been  tried  for  the  same  act,  though  under  a  diiferent 
charge,  were  all  subject  to  be  set  aside  on  challenge.  (Ibid.,  par.  10.) 

It  is  not  necessary  (though  usual  and  proper)  for  a  member  to  withdraw  from  the 
courtroom  on  being  challenged  and  pending  the  deliberation  on  the  objection.  (Ibid., 

Courts  should  be  liberal  in  passing  upon  challenges,  but  should  not  entertain  an 
objection  which  is  not  specific,  or  allow  on«  upon  its  mere  assertion  by  the  accused, 
without  proof  and  in  the  absence  of  any  admission  on  the  part  of  the  member,  (a) 
A  positive  declaration  by  the  challenged  member  to  the  effect  that  he  has  no  preju- 
dice or  interest  in  the  case  will,  in  gener. .1,  in  the  absence  of  material  evidence  in 
support  of  theobjection,  justify  the  court  in  overruling  it.  (Ibid.,  101,  par.  12.) 

Where,  before  arraignment,  the  accused  (an  officer),  without  having  personal 
knowledge  of  the  existence  of  ground  of  challenge  to  a  member,  had  credible  hear- 
say information  of  its  existence,  held  that  he  should  properly  have  raised  the  objec- 
tion before  the  members  were  sworn,  and  that  the  court  was  notiu  error  in  refusing 
to  allow  him  to  take  it  at  a  subsequent  stage  of  the  trial.  (Ibid.,  102,  par.  13.) 

The  fact  that  a  sufficient  cause  of  challenge  exists  against  a  member,  but,  through 
ignorance  of  his  rights,  is  not  taken  advantage  of  by  the  accused,  or  if  asserted  is 
improperly  overruled  by  the  court,  can  afl'ect  in  no  manner  the  validity  in  law  of  the 
proceedings  or  sentence,  though  it  may  sometimes  properly  furnish  occasion  for  a 
disapproval  of  the  proceedings,  etc.,  or  a  remission  in  whole  or  in  part  of  the  sen- 
tence, (b)  (Ibid.,  par.  14.) 

The  article  imposes  no  limitation  upon  the  exercise  of  the  right  of  challenge  other 
than  that  "more  than  one  member  shall  not  be  challenged  at  a  time."  Thus  while 

a  See  G.  C.  M.  0. 66,  War  Department,  1875.  The  challenge  the  allowance  of  which 
by  the  court  in  General  Twiggs's  case  was  disapproved  in  G.  0. 4,  War  Department, 
1858,  was  simply  a  general  objection  to  the  member  by  the  accused  on  account  of 
i: some  unpleasant  circumstances  growing  out  of  their  official  relations,"  no  specific 
allegation  of  bias  being  made  and  the  member  himself  expressly  disclaiming  any 
feeling  of  prejudice. 

6See  opinion  of  the  Attorney-General  of  January  19,  1878  (15  Opius.,  432),  in  which 
the  opinion,  expressed  by  the  Judge- Advocate -General  in  the  most  recentof  the  cases 
upon  which  this  paragraph  is  based— that  the  [fact  that  one  of  the  charges  upon 
which  the  accused  was  convicted  was  preferred  by  a  member  of  the  court  who  also 
testified  as  a  witness  on  the  trial  (but  who,  though  clearly  subject  to  objection,  was 
not  challenged  by  the  accused)  could  not  affect  the  validity  of  the  sentence  of  dis- 
missal after  the  same  had  been  duly  confirmed — is  concurred  in  by  the  Attorney- 
General.  And  to  a  similar  effect  see  Keyes  v.  U.  S.,  15  C.  Cls.  R.,  532. 

In  G.  C.  M.  0. 88,  Department  of  Dakota,  1878,  the  point  is  noticed  that  where  a 
challenge  interposed  by  the  accused  has  been  improperly  disallowed  a  subsequent 
plea  of  guilty  is  not  to  be  treated  as  a  waiver  of  the  advantage  to  which  he  may  be 
entitled  by  reason  of  the  improper  ruling, 


744  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

Administra-     That  judge-advocates  of  departments  and   of  courts- 

tion  of  oaths.  J 

Sec.  4,  July  27  martial,  and  the  trial  officers  of  summary  courts,  are 
hereby  authorized  to  administer  oaths  for  the  purposes  of 
the  administration  of  military  justice,  and  for  other  pur- 
poses of  military  administration.  Sec.  4,  act  of  July  27, 
1892  (27  Stat  L.,  278}. 

Depositions.  ART.  91.  The  depositions  of  witnesses  residing  beyond  the 
75,  s.  27,V.  12,'  p!  limits  of  the  State,  Territory,  or  district  in  which  any  mili- 

9i  Art.  war.  tary  court  may  be  ordered  to  sit,  if  taken  on  reasonable 
notice  to  the  opposite  party  and  duly  authenticated,  may  be 
read  in  evidence  before  such  court  in  cases  not  capital.1 

the  panel,  or  the  court  as  a  whole,  is  not  subject  to  challenge,  yet  all  the  members 
may  be  challenged  provided  they  are  challenged  separately.  The  article  contains 
no  authority  for  challenging  the  judge  advocate.  (See  Judge- Advocate).  (Ibid.,par.l5.) 

The  court  of  itself  can  not  excuse  a  member  in  the  absence  of  a  challenge.  A 
member  not  challenged  but  considering  himself  disqualified,  can  be  relieved  only 
by  application  to  the  convening  authority.  (Ibid.,  103,  par.  16.) 

An  accused  challenged  the  entire  court  on  the  ground  that  the  convening  officer 
was  "accuser."  Held  properly  overruled ;  the  array  can  not  be  challenged  at  mili- 
tary law.  The  article  declares  that  "the  court  *  *  *  shall  not  receive  a  chal- 
lenge to  more  than  one  member  at  a  time."  (Ibid.,  par.  17.) 

A  court-martial  can  not  relieve  or  "excuse"  a  member  except  upon  a  challenge 
duly  interposed  and  sustained  under  Ihis  article.  The  fact  that  a  member  has  been 
absent  from  the  court  for  several  days  and  has  not  heard  the  testimony  meanwhile 
taken  constitutes  no  legal  ground  for  excusing  him  by  the  court.  (Ibid.,  par.  18.) 

An  accused  objected  to  a  member  on  the  ground  that  some  time  before  he  had  had 
a  disagreement  with  the  member  and  thought  that  he  "might  be  prejudiced."  The 
member  decJared  that  ho  was  conscious  of  no  prejudice  whatever,  but  that,  on  the 
contrary,  his  feelings  toward  the  accused  were  friendly.  Held  that  the  court  erred 
in  sustaining  the  challenge.  (Ibid.,  par.  19.) 

The  accused  were  Indian  scouts,  charged  with  mutiny.  Some  of  the  members  of 
the  c^urt,  though  disclaiming  any  prejudice  against  the  accused  personally,  were 
aware  that  they  were  present  at  the  outbreak,  and  were  fully  apprised,  from  their 
own  personal  presence  or  knowledge  of  the  circumstances,  that  the  mutiny,  which 
had  involved  homicide,  constituted  a  most  aggravated  offense  of  the  class.  Held 
that,  as  these  members  could  scarcely  avoid  applying  their  impressions  to  the 
accused  when  shown  to  be  connected  with  the  disorder,  they  would  fairly  have  been 
subject  to  objection  as  triers.  (Ibid.,  par.  20.) 

A  mere  general  opinion  in  regard  to  tne  impropriety  of  acts  such  as  those  charged 
against  the  accused,  unaccompanied  by  any  opinion  as  to  his  guilt  or  innocence  on  the 
charges,  is  not  a  sufficient  ground  of  objection  under  this  article.  (Ibid.,  par.  21.) 

Whether  the  trial  of  an  officer  by  officers  of  an  inferior  rank  can  be  avoided  or  not, 
is  a  question  not  for  the  accused  or  the  court,  but  for  the  officer  convening  the  court; 
and  his  decision  (as  indicated  by  the  detail  itself  as  made  in  the  convening  order) 
upon  this  point,  as  upon  that  of  the  number  of  members  to  be  detailed,  is  conclusive. 
An  officer,  therefore,  can  not  successfully  challenge  a  member  because,  merely,  of 
being  of  a  rank  inferior  to  his  own.  (Ibid.,  89,  par.  i.) 

1 A  deposition  can  not  be  read  in  evidence  in  a  capital  case,  (a)  as  in  a  case  of  a 
violation  of  article  21,  or  a  case  of  a  spy,  or  one  of  desertion  in  time  of  war ;  other- 
wise in  a  case  of  desertion  in  time  of  peace.  Nor  is  the  deposition  admissible  of  a 
witness  who  resides  in  the  State,  etc.,  within  which  the  court  is  held,  except  by 
consent,  (b)  (Dig.  Opin.  J.  A.  Gen.,  104,  par.  1.) 

Where  the  evidence  of  high  officers  or  public  officials — as  a  department  commander, 
or  chief  of  a  bureau  of  the  War  Department— is  required  before  a  court-martial,  the 
same,  especially  if  the  court  is  assembled  at  a  distant  point,  should  be  taken  by 
deposition,  if  authorized  under  this  article  Such  officers  should  not  be  required  to 
leave  their  public  duties  to  attend  as  witnesses,  except  where  their  depositions  will 
not  be  admissible,  and  where  the  case  is  one  of  special  importance  and  their  testi- 
mony is  essential.  The  Secretary  of  War  should  not  be  required  to  attend  as  a 
witness,  or  to  give  his  deposition  in  a  military  case,  where  the  chief  of  a  staff  corps 
or  other  officer,  in  whose  bureau  the  evidence  sought  is  matter  of  record,  or  who  is 
personally  acquainted  with  the  facts  desired  to  be  proved,  can  attend  or  depose  in 
his^stead.  (Ibid.,  par.  2.) 

The  party  at  whose  instance  a  deposition  has  been  taken  can  not  be  admitted, 
against  the  objection  of  the  other  party,  to  introduce  only  such  parts  of  the  deposi- 
tion as  are  favorable  to  him  or  as  he  may  elect  to  use;  he  must  offer  the  deposition 
in  evidence  as  a  whole  or  not  offer  it  at  all.  (Ibid.,  par.  3.) 

If  the  party  at  whose  instance  a  deposition  has  been  taken  decides  not  to  put  it 
in,  it  may  bo  read  in  evidence  by  the  other  party.  One  party  can  not  withhold  a 
deposition  (duly  taken  and  admissible  under  this  article)  against  the  consent  of  the 
other.  (Ibid.,  105.  par.  4.) 

Held  that  the  deposition  of  a  witness  residing  in  a  foreign  country,  and  taken 

a  As  to  the  meaning  of  "  capital,"  see  sixty-second  article,  note  1,  and  eighty-third 
article,  note  2,  supra. 

b  Note  the  remarks  of  the  reviewing  authority  in  G.  C.  M.  0. 102  Department  of 
the  East,  1871 ;  G.  C.  M.  0. 1,  Division  of  South,  1875. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      745 

ART.  92.  All  persons  who  give  evidence  before  a  court-  ne^8ath  of  wit' 
martial  shall  be  examined  orr  oath,  or  affirmation,  in  the    92  Ar*-  war. 
following  form :  "You  swear  (or  affirm)  that  the  evidence 

before  a  qualified  person,  as  an  American  consul,  would  be  admissible  in  evidence 
under  tins  article  equally  with  the  deposition  of  a  resident  of  the  United  States. 
(Ibid.,  par.  5.) 

Where  the  judge-advocate  offered  in  evidence,  on  the  part  of  the  prosecution,  a 
deposition  which  proved  to  have  been  given  by  a  person  other  than  the  one  to  whom 
the  interrogatories  were  addressed,  and  the  accused  objected  to  its  introduction,  but 
the  objection  was  overruled  by  the  court,  held  error;  the  fact  that  the  intended  de- 
ponent was  but  the  agent,  in  the  transaction  inquired  about,  of  the  person  who  actu- 
ally furnished  the  deposition  not  being  sufficient  to  make  such  deposition  admissible 
except  by  consent  of  parties,  (a)  (Ibia.,  par.  6.) 

This  article,  in  any  case  within  its  terms  and  in  which  its  conditions  are  complied 
with,  entitles  either  party  to  have  depositions  taken  and  "read  in  evidence."  The 
court  alone  has  no  power  to  decide  that  a  deposition,  where  legal  and  material,  shall 
not  be  taken.  (Ibid.,  par.  7.) 

A  deposition,  introduced  by  either  party,  which  is  not  'duly  authenticated," 
should  not  be  admitted  in  evidence  by  the  court,  although  the  other  party  may  not 
object.  A  deposition  held  irregular  and  inadmissible  where  it  failed  to  show  that 
the  officer  by  whom  it  was  taken  was  authorized  to  take  it,  or  that  he  was  qualified 
to  administer  the  oatli  to  the  witness.  (Ibid.,  par.  9.) 

The  article,  in  specifying  that  the  deposition,  to  be  admissible  in  evidence,  shall 
be  "  duly  authenticated,"  makes  it  essential  that  the  same  shall  be  sworn  to  before, 
i.  e.,  taken  under  an  oath  administered  by,  an  official  competent  to  administer  oaths 
for  such  purpose.  A  deposition  should  now  be  sworn  to  before  one  of  the  military 
officers  specified  in  the  act  of  July  27,  1892,  section  4,  or  if  such  an  officer  be  not  ac- 
cessible, by  a  civil  official  competent  to  administer  oaths  in  general.  An  official 
empowered  to  administer  oaths  only  for  a  certain  special  purpose  or  purposes  can 
not  legally  qualify  a  witness  whoso  deposition  is  sought  to  be  taken  under  this  arti- 
cle. (Ibid.,  par.  9.) 

The  so-called  depositions  (''affidavits  or  depositions")  referred  to  in  paragraph 
771,  Army  Regulations,  are  entirely  distinct  from  the  depositions  provided  fur  in 
article  91,  being  merely  sworn  ex-partp  statements  used  for  the  purpose  of  settling 
questions  of  "property  accountability,"  The  regulation  has  no  application  what- 
ever to  depositions  proper  of  the  class  authorized  by  this  article.  (See  General 
Order  20  of  1894,  amending  this  regulation.)  (Ibid.,  106,  par.  10.) 

A  court-martial  has  no  power  to  qualify  or  authorize  a  commanding  officer,  or  any 
other  officer  or  person,  to  take  a  deposition  or  administer  an  oath.  (Ibid.,  par.  11.) 

A  deposition  is  not  in  general  satisfactory  evidence  for  purposes  of  personal  iden- 
tification by  description,  and  should  not  be  resorted  to  for  the  identification  of  an 
accused  where  reliable  oral  testimony  can  be  obtained.  (Ibid.,  par.  12.) 

The  depositions  of  civilian  witnesses,  while  their  taking  generally  involves  less 
expense  than  would  the  personal  attendance  of  the  parties,  are  usually  quite  suffi- 
cient as  testimony,  except  when  the  purpose  of  the  evidence  is  to  personally  identify 
the  accused  before  the  court.  (Ibid.,  par.  13.) 

The  judge-advocate,  in  forwarding  the  interrogatories  for  a  deposition,  should 
transmit  with  them  a  subpoena  (in  duplicate)  requiring  the  witness  to  appear  at  a 
stated  place  and  date  before  a  certain  person  who  is  to  take  the  deposition.  Par- 
ticulars not  ascertained  may  be  left  blank  to  be  supplied  by  the  officer  or  person  by 
whom  the  subprena  is  served.  When  the  deposition  has  been  duly  taken  and  re- 
turned, the  judge  advocate  should  transmit  to  the  witness  (or  to  so  o  officer,  etc., 
for  him)  the  usual  certificate  of  attendance  (accompanied  by  a  copy  of  the  conven- 
ing order),  the,  duration  of  the  attendance  to  be  ascertained  from  the  deposition. 
(Ibid. ,463.  par  36.) 

The  officer  detailed  to  have  a  deposition  taken,  i.  e.,  to  see  to  its  being  taken, 
should,  before  serving  the  subpoena,  complete  it,  if  necessary,  by  inserting  the  name 
and  official  designation  of  the  notary  (or  other  official  having  authority  to  adminis- 
ter the  oath)  before  whom  it  is  to  be  taken,  and  the  date  on  which  and  the  place 
where  it  is  proposed  to  take  it.  And  when  the  deposition  has  been  duly  taken,  he 
should  certify  it  as  so  taken,  and  transmit  it  in  a  sealed  package  to  the  president  of 
the  court.  (Ibid.,  par.  15.) 

Civilian  witnesses  who  duly  give  their  depositions  under  this  article  are  entitled 
to  the  same  fees  and  allowances  as  are  witnesses  who  duly  attend  the  court  in  person. 
(See  Circular  No,  9  (II.  A.).  1883.)  The  voucher,  to  enable  such  a  witness  to  obtain 
his  dues,  should  simply  set  forth  the  facts  as  to  his  service,  substituting,  for  the 
usual  statement  in  regard  to  attendance  before  the  court,  a  statement  that  ho  duly 
attended  as  a  witness  at  a  certain  time  and  place,  and  duly  gave  his  deposition  before 
a  certain  official  named.  (Ibid.,  par.  16.) 

Held  that  duly  attending  by  a  civilian  witness  before  a  duly  authorized  official  to 
give  a  deposition,  to  be  used  in  evidence  on  a  military  trial,  was  to  be  regarded  as 
practically  equivalent  to  attending  a  court-martial,  and  that  the  deponent  was  enti- 
tled to  be  paid  the  usual  allowances  (i.  e.,  the  same  as  those  of  witnesses  appearing 
before  the  court)  out  of  the  regular  appropriation  for  the  "compensation  of  witnesses 
attending  before  courts-martial."  (Ibid.,  759.  par.  36.) 

Held  that  a  sum  of  $3,  disbursed  by  an  officer  ordered  to  procure  a  deposition  to 
be  taken,  as  a  payment  to  a  justice  of  the  peace  before  whom  the  deposition  was 
given,  would  legally  be  reimbursed,  on  the  presentation  of  a  proper  voucher,  by  the 
Quartermaster  Department,  out  of  the  appropriation  for  the  expenses  of  witnesses 
before  courts-martial.  (Ibid.,  107,  par.  17.) 

A  deposition  duly  taken,  under  the  article,  on  the  part  of  the  prosecution,  is  not 
subject  to  objection  by  the  accused  and  can  not  be  rejected  by  the  court  merely 


a  See  G.  C.  M.  0. 9,  Headquarters  of  Army,  1879. 


746  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

you  shall  give,  in  the  case  now  in  hearing,  shall  be  the 
truth,  the  whole  truth,  and  nothing  but  the  truth.  So 
help  you  God/ l 

Continuances.  ART.  93.  A  court-martial  shall,  for  reasonable  cause, 
grant  a  continuance  to  either  party,  for  such  time,  and  as 
often,  as  may  appear  to  be  just :  Provided,  That  if  the  pris- 
oner be  in  close  confinement,  the  trial  shall  not  be  delayed 
for  a  period  longer  than  sixty  days.2 

upon  the  ground  that  it  is  declared  in  the  sixth  amendment  to  the  Constitution  that 
"m  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  *  *  *  to  be  con- 
fronted with  the  witnesses  against  him."  This  constitutional  provision  has  no  ap- 
plication to  courts-martial;  the  "criminal prosecutions"  referred  to  are  prosecutions 
in  the  United  States  civil  courts.  (Ibid.,  par.  18.) 

The  provisions  of  sections  866-870,  Revised  Statutes,  relate  to  depositions  in  the 
UnitedStates  courts  and  have  no  application  to  courts-martial,  which  are  no  part  of 
the  United  States  judiciary.  Held,  therefore,  that  there  was  no  authority  whatever 
for  prescribing,  as  was  done  in  General  Order  2,  Department  of  Texas,  1888,  that  the 
laws  of  Texas  in  regard  to  the  taking  of  depositions  should  govern  depositions  in 
military  courts  held  within  that  State.  (Ibid.,  par.  19.) 

In  military  law  an  accused  party  can  not  be  deemed  to  be  entitled  to  have  a  witness 
summoned  from  a  distance  whose  military  or  administrative  duties  are  of  such  a 
character  that  they  can  not  be  left  without  serious  prejudice  to  the  public  interests. 
Article  VI  of  the  amendments  to  the  Constitution,  declaring  that  the  accused  shall 
be  entitled  "to  bo  confronted  with  the  witnesses  against  him,"  applies  only  to  cases 
before  the  United  States  coiirts.  Thus  where  the  offense  charged  is  not  capital,  and 
a  deposition  may  therefore  legally  be  taken  under  the  ninety  first  article  of  war,  the 
Secretary  of  War  will  not  in  general  authorize  the  personal  attendance  at  the  place 
of  trial  of  a  witness  whose  office  or  duty  makes  it  necessary  or  most  important  that 
he  should  remain  elsewhere.  (Ibid.,  752,  par.  10.) 

An  accused  party  at  a  military  trial  can  rarely  be  entitled  to  demand  the  attend- 
ance, as  a  witness,  of  a  chief  of  a  staff  corps,  much  less  that  of  the  President  or 
Secretary  of  War,  especially  as  some  minor  official  can  almost  invariably  furnish  the 
desired  facts.  If,  however,  the  testimony  of  one  of  these  officials  be  found  to  be 
necessary  or  most  desirable,  and  the  same  can  not  legally  be  taken  by  deposition,  the 
court,  if  convened  at  a  distance,  may  properly  be  adjourned  to  Washington  or  other 
convenient  point,  in  order  that  the  witness  may  be  enabled  to  attend  without  detri- 
ment to  the  public  interests.  (Ibid.,  par.  11.) 

1  This  article  prescribes  a  single  specific  form  of  oath  to  be  taken  by  all  witnesses. 
The  Constitution,  however  (article  1  of  amendments),  has  provided  that  Congress 
shall  make  no  law  prohibiting  the  free  exorcise  of  religion.  Where,  therefore,  the 

r  scribed  form  is  not  in  accordance  with  the  religious  tenets  of  a  witness,  he  should 
permitted  to  be  sworn  according  to  the  ceremonies  of  his  own  faith  or  as  he  may 
deem  binding  on  his  conscience,  (a)  (Dig.  Opin.  J.  A.  Gea.,  107,  par.  1.) 

The  article  does  not  prescribe  by  whom  the  oath  shall  be  administered.  By  the 
custom  of  the  service  it  is  administered  by  the  judge-advocate.  (And  see  novv  the 
provision  of  the  act  of  July  27,  1892,  section  4.)  When  the  judge  advocate  himself 
takes  the  witness  stand,  he  is  properly  sworn  by  the  president  of  the  court.  (Ibid., 
108,  par.  2.) 

A  witness  who  has  once  been  sworn  and  has  testified  is  not  required  to  be  resworn 
on  being  subsequently  recalled  to  the  stand  by  either  party.  The  reswearing,  how- 
ever, of  such  a  witness  will  not  affect  the  legal  validity  of  the  proceedings  or  sen- 
tence (Ibid.,  par.  3.) 

2In  making  an  application  for  a  continuance  or  postponement  under  this  article, 
on  account  ot  the  absence  of  a  witness,  the  form  of  affidavit  prescribed  in  paragraph 
887  of  the  Army  Regulations  should  in  general  be  substantially  observed.  But 
while  the  court  may  refuse  the  application  if  this  regulation  be  notfollowed,  it  may, 
in  its  discretion,  refrain  from  insisting  that  the  same  be  strictly  complied  with,  and 
accept  a  modified  form. (b)  ,  It  should,  however,  in  all  cases  require  that  the  desired 
evidence  appear  or  be  shown  to  be  material,  and  not  merely  cumulative,  (c)  ar.d  that 
to  awaitits  production  will  not  delay  the  trial  for  an  unreasonable  period.  It  should 
also,  in  general,  before  granting  the  continuance,  be  assured  that  the  absence  of  the 
witness  is  not  owing  to  any  neglect  on  the  part  of  the  applicant.  This  feature, 
however,  will  not  be  so  much  insisted  upon  in  military  as  in  civil  cases. (d)  (Ibid., 
par.  1.) 

Where  "reasonable  cause"  is,  in  the  judgment  of  the  court,  exhibited,  the  party 
is  entitled  to  some  continuance  under  the  article,  (e)  A  refusal,  indeed,  by  the  court 

a  See  1  Greenl.  Ev.,  sec.  371 :  O'Brien,  260. 

bit  is  not  the  practice  of  courts-martial  to  admit  counter  affidavits  from  the  op- 
posite party  as  to  what  the  absent  witness  would  testify.  And  as  to  the  civil 
practice,  see  Williams  v.  State,  6  Nebraska,  334. 

c  Compare  People  v.  Thompson,  4  Cal.,  238;  Parker  v.  State,  55  Miss.,  414. 

d  A  military  accused  can  not  be  charged  with  laches  in  not  procuring  the  attend- 
ance at  his  trial  of  a  witness  who  is  prevented  from  being  present  by  superior  mili- 
tary authority.  Thus  in  a  case  in  G.  O.  63,  Department  of  Dakota,  1872,  an  accused 
soldier  was  held  entitled  to  a  continuance  till  the  return  of  material  witnesses  then 
absent  on  an  Indian  expedition. 

« It  would  properly  be  so  held  upon  common-law  principles,  even  independently 
of  the  positive  terms  of  the  article.  In  Rex  v.  D'Eon,  1  W.  Black.,  514,  it  was  de- 
clared by  Lord  Mansfield  that  "No  crime  is  so  great,  no  proceeding  so  instantane- 
ous, but  that,  upon  sufficient  grounds,  the  trial  may  be  put  off." 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES.  747 

ART.  94.  Proceedings  of  trials  shall  be  carried  on  only  ti^ours  of  8it' 
between  the  hours  of  eight  in  the  morning  and  three  in  the    »*  A>*t-  war. 
afternoon,  excepting  in  cases  which,  in  the  opinion  of  the 
officer  appointing  the  court,  require  immediate  example.1 

That  whenever  a  court-martial  shall  sit  in  closed  session   Judge. advo- 

cate  to  withdraw 

the  judge- advocate  shall  withdraw,  and  when  his  legal  from  closed  sea- 
advice  or  his  assistance  in  referring  to  recorded  evidence    sec.  2,  July  27, 
is  required  it  shall  be  obtained  in  open  court.    Sec.  2,  act  of 
July  27,  1892  (27  Stat.  L.,  278). 


to  grant  such  continuance  will  not  invalidate  the  proceedings,  but,  if  the  accused 
has  thus  been  prejudiced  in  his  defense,  may  properly  constitute  good  ground  for 
disapproving  the  sentence,  (a)  or  for  mitigating  or  partially  remitting  the  punish- 
ment. (Ibid.,  109,  par.  2.) 

Where  an  accused  soldier,  by  reason  of  his  regiment  having  been  moved  a  long 
distance  since  his  arrest,  was  separated  at  his  trial  from  certain  witnesses  material 
to  his  defense,  held  that  he  was  entitled  to  a  reasonable  continuance  for  the  pur- 
pose of  procuring  their  attendance  or  their  depositions.  (Ibid.,  par.  3.) 

That  the  charges  and  specifications  upon  which  an  accused  is  arraigned  differ  in  a 
material  particular  from  those  contained  in  the  copy  served  upon  him  before  arraign- 
ment may  well  constitute  a  sufficient  ground  for  granting  him  additional  time  for 

bid., 


the  preparation  of  his  defense.     (See  Charge.)     (Ibid.,  par.  4.) 

Where  after  arraignment  a  material  and  substantial  amendment  is  allowed  by  the 
court  toe  be  made  by  the  judge-advocate  in  a  specification,  the  effect  of  which  amend- 
ment is  to  necessitate  or  make  desirable  a  further  preparation  for  his  defense  on  the 
part  of  the  accused,  a  reasonable  postponement  for  this  purpose  will  in  general  prop- 
erly be  granted  by  the  court.  (Ibid.,  par.  5.) 

It  is  in  general  good  ground  fora  reasonable  continuance  that  the  accused  needs 
time  to  procure  the  assistance  of  counsel,  (b)  if  it  is  made  to  appear  that  such  counsel 
can  probably  be  obtained  within  the  time  asked,  and  that  the  accused  is  not  charge- 
able with  remissness  in  not  having  already  provided  himself  with  counsel.  (Ibid., 
110,  par.  6.) 

This  article  is  imperative  upon  the  point  that  10  proceedings  of  trials  shall  be 
carried  on  before  8  o'clock  a.  m.  or  after3  o'clock  p.  m.,  except  in  the  class  of  cases  spe- 
cifically indicated.  Where,  therefore,  the  record  shows  affirmatively  that  any  par- 
ticular material  proceeding  of  the  trial  was  had  by  the  court  before  8  or  after  3 
o'clock,  and  sets  forth  no  authority  for  the  same  from  the  convening  officer  (such  as 
the  usual  direction  or  permission  in  the  convening  order  that  the  court  "will"  or 
"  may  sit  without  regard  to  hours"),  such  proceeding  must  be  held  unauthorized 
and  of  no  legal  effect,  (c)  And  if  the  proceeding,  thus  futile,  was  one  necessary  to 
the  completeness  of  the  trial,  or  otherwise  important,  it  should  be  repeated,  or  taken 
denovo,  within  legal  houra.  (Ibid.,  110,  par.  1.) 

The  article,  however,  does  not  require  that  the  record  shall  show  in  terms  that  the 
hours  indicated  were  observed.  It  is  proper,  indeed,  and  the  best  practice,  to  state 
the  hour  of  each  meeting  and  adjournment;  but  where  no  such  entry  appears  in  the 
proceedings,  the  same  will  not  be  invalidated,  but,  in  the  absence  of  evidence  to  the 
contrary,  it  will  be  presumed,  in  favor  of  the  record,  (d)  that  the  court  did  not  sit 
except  between  the  prescribed  hours.  (Ibid  ,  111,  par.  2.) 

The  entertaining  by  the  court,  after  3  o'clock  p.  m.,  of  a  motion  to  adjourn  would 
not  be  unauthorized,  such  a  motion  not  being  properly  a  proceeding  of  a  trial  in  the 
sense  of  the  article.  (Ibid.,  par.  3.) 

Where  the  record  of  a  court-martial,  which  set  forth  no  authority  for  sitting 
beyond  the  hours  prescribed  in  this  article,  contained  the  statement  that  "the  court, 
having  no  further  business,  adjourned  at  11.15  p.m.  sine  die,"  held  that  the  pro- 
ceedings were  legally  inoperative.  (Ibid.,  par.  4.) 

Where  neither  in  the  order  convening  a  court-martial  nor  in  any  supplementary 
order  is  authority  given  for  its  sitting  beyond  or  outside  of  the  hours  prescribed  by 
this  article,  and  its  record  affirmatively  shows  that  the  trial  or  a  portion  of  the  trial 
of  a  case  was  not  conducted  within  such  hours,  the  proceedings  are  unauthorized 
and  inoperative,  and  the  sentence,  if  any,  is  nullified,  unless  by  a  reconvening  of  the 
court  the  defect  may  be  remedied.  Thus,  where  it  appeared  irom  the  record  that  a 
court-martial,  on  a  certain  day,  without  any  authority  given  it,  sat  and  completed  a 
trial  after  3  o'clock  p.  m.,  advised  that  the  error  might  be  corrected  by  continuing  the 
trial  anew,  within  legal  hours,  from  the  point  reached  at  3  o'clock  on  that  day;  and 
recommended  that  the  court  be  reconvened  for  this  purpose.  (Ibid.,  par.  5.) 


1  Note  the  different  reasons  for  this  enactment  assigned  by  Attorney -General  Speed 
(11  Opins.,141)  and  Copp6e  (p.  50),  and  see,  on  this  point,  Hough  (Practic 


(Practice),  377. 


aSee  G.  C.  M.  0. 35,  War  Department,  1867 ;  G.  C.  M.  0. 128,  Headquarters  of  Army, 
1876;  G.  O.  24,  Department  of  Arizona,  1874. 

6  See  G.  C.  M.  O.  25,  War  Department,  1875. 

cln  some  cases  where  the  trials  have,  without  express  authority,  been  commenced 
before  8  a.  m.  or  continued  after  3  p.  m.,  the  entire  proceedings  and  sentences  have 
been  disapproved  as  fatally  defective.  See  G.  O.  2,  Department  of  the  South,  1873; 
G.  O.94,  Department  of  the  Gulf,  1864:  S.  O.  281,  Department  of  Washington,  1861. 
Strictly,  however,  it  is  only  the  proceeding  had  during  the  inhibited  interval  that 
is  unauthorized  and  inoperative,  and  the  irregularity  involved  may  in  general  be 
remedied  as  indicated  in  the  text. 

d  As  to  the  presumption  in  favor  of  the  regularity  of  judicial  proceedings,  see  1 
Greenl,  Ev,,  see,  19, 


748  THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 

order  of  vot-     ART.  95.  Members  of  a  court-martial,  in  giving  their 
m&  Art.  war.    votes,  shall  begin  with  the  youngest  in  commission, 
sentence  of     ART.  96.  No  person  shall  be  sentenced  to  suffer  death 
G96  Art.  war.    except  by  the  concurrence  of  two-thirds  of  the  members  of 
a  general  court-martial,  and  in  the  cases  herein  expressly 
mentioned.1 

Penitentiaries.     ART.  97.  No  person  in  the  military  service  shall,  under 
i9o.u»s.  i,  4,  v.  12,  the  sentence  of  a  court-martial,  be  punished  by  confine- 
p'9?9Art.  war.    ment  in  a  penitentiary,  unless  the  offense  of  which  he  may 
be  convicted  would,  by  some  statute  of  the  United  States, 
or  by  some  statute  of  the  State,  Territory,  or  District  in 
which  such  offense  may  be  committed,  or  by  the  common 
law,  as  the  same  exists  in  such  State,  Territory,  or  Dis- 
trict, subject  such  convict  to  such  punishment.2 

1  Though  it  has  sometimes  been  viewed  otherwise,  it  is  deemed  quite  clear  upon 
the  terms  of  the  present  article  that  it  is  not  necessary  to  the  legality  of  a  death 
sentence  that  two-thirds  of  the  court  should  have  concurred  in  the  finding  as  well 
as  the  sentence,  (a)    Further,  in  the  absence  of  any  requirement  to  that  effect  in  the 
article.it  is  not  deemed  essential  to  the  validity  of  the  sentence  that  the  record 
should  state  the  fact  that  two-thirds  of  the  court  concurred  therein.    The  practice, 
however,  has  been  to  add  such  a  statement.    (Dig.  Opin.  J.  A.  Gen.,  112,  par  1  ) 

A  sentence  of  death  imposed  by  a  court  martial,  upon  a  conviction  of  several  dis- 
tinct offenses,  will  be  authorized  and  legal  if  any  one  of  such  offenses  is  made  capi- 
tally punishable  by  the  Articles  of  War,  although  the  other  offenses  may  not  be  so 
punishable.  (Ibid  ,  par.  2.) 

A  court-martial,  in  imposing  a  death  sentence,  should  not  designate  a  time  or  place 
for  its  execution,  such  a  designation  not  being  within  its  province,  but  pertaining 
to  that  of  the  reviewing  authority.  If  it  does  so  designate,  this  part  of  the  sentence 
may  be  disregarded,  and  a  different  time  or  place  fixed  by  the  commanding  general. 
(Ibid .,  par.  3.) 

Where  a  death  sentence  imposed  by  a  court  martial  has  been  directed  by  the 
proper  authority  to  be  executed  on  a  particular  day,  and  this  day,  owing  to  some 
exigency  of  the  service,  has  gone  by  without  the  sentence  being  executed,  it  is  com- 
petent for  the  same  authority,  or  his  proper  superior,  to  name  another  day  for  the 
purpose,  the  time  of  its  execution  being  an  immaterial  element  of  this  punish- 
ment. (6)  (Ibid.,  par.  4.) 

2  This  article  by  necessary  implication  prohibits  the  imposition  of  confinement  in 
a  penitentiary  as  a  punishment  for  offenses  of  a  purely  or  exclusively  military  char- 
acter— such  as  desertion,  for  example,  (c)    (Dig.  Opin.  J.  A.  Gen.,  113,  par.  1.) 

A  sentence  of  penitentiary  confinement  in  a  case  of  a  purely  military  offense  is 
wholly  unauthorized  and  should  be  disapproved.  Effect  can  not  be  given  to  such  a 
sentence  by  commuting  it  to  confinement  in  a  military  prison  or  to  some  other  pun- 
ishment which  would  be  legal  for  such  offense.  Nor  in  a  case  of  such  an  offense  can 
a  severer  penalty,  as  death,  be  commuted  to  confinement  in  a  penitentiary.  (Ibid., 
par.  2.) 

Nor  can  penitentiary  confinement  be  legalized  as  a  punishment  for  purely  military 
offenses  by  designating  a  penitentiary  as  a  "  military  prison  ' '  and  ordering  the  con- 
finement there  of  soldiers  sentenced  to  imprisonment  on  conviction  of  such  offenses. 
(Ibid.,  par.  3.) 

An  offense  charged  as  "conduct  to  the  prejudice  of  good  order  and  military  dis- 
cipline," which,  however,  is  in  fact  a  larceny,  (d)  embezzlement,  violent  crime,  or 

a  Compare  McNaghten.  120. 

b  It  was  held  by  the  Supreme  Court  in  Coleman  v.  Tennessee  (7  Otto,  519,  520)  that 
a  soldier  who  had  been  convicted  of  murder  and  sentenced  to  death  by  a  general 
court-martial  in  May,  1865,  but  the  execution  of  whoso  sentence  had  been  meanwhile 
deferred,  by  reason  of  his  escape  and  the  pendency  of  civil  proceedings  in  his  case, 
might  at  the  date  of  the  ruling  (October  term.  1878*  "be  delivered  up  to  the  military 
authorities  of  the  United  States,  to  be  dealt  with  as  required  by  law  " 

More  recently  (May,  1879,  16  Opins.,  349)  it  has  been  held  in  this  case  by  the 
Attorney-General  that  the  death  sentence  might  legally  be  executed  notwithstand- 
ing the  fact  that  the  soldier  had  meanwhile  been  discharged  from  the  service,  such 
discharge,  while  formally  separating  the  party  from  the  Army,  being  viewed  as  not 
affecting  his  legal  status  as  a  military  convict.  But,  in  view  of  all  the  circum- 
stances of  the  case,  it  was  recommended  that  the  sentence  be  commuted  to  imprison- 
ment for  life  or  a  term  of  years. 

c  See  G.  0. 4,  War  Department,  18<i7 ;  also  the  action  taken  in  cases  in  the  follow- 
ing general  orders :  G.  0. 21 ,  Department  of  the  Platte,  1866 ;  G.  0. 21,  ibid.,  1871 ;  G.  O. 
44.  Eighth  Army  Corps,  1862,  G  C.  M.  0. 34, 35, 43,  46,  72,  73,  Department  of  the  Mis- 
souri, 1870. 

din  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the  value  of  the 
property  stolen  be  not  too  small  to  permit  of  penitentiary  confinement  for  the  offense 
under  the  local  law.  See  G.  0. 44,  Eighth  Army  Corps,'  1862 ;  G.  C.  M.  0. 63,  Depart- 
ment of  the  Platte,  1872. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  749 

ART.  98.  No  person  in  the  military  service  shall  be  pun-    J^^fggj 
ished  by  flogging,  or  by  branding,  marking,  or  tattooing  &>  a-  s,  v.  12.  V 

317;  tJunoG,  1872, 

on  the  body.  c.  sie,  s.  2, v.  17,  p.  201.    os  Art.  War. 

ART.  99.  No  officer  shall  be  discharged  or  dismissed 
from  the  service,  except  by  order  of  the  President,  or  byce™       War 
sentence  of  a  general  court-martial;  and  in  time  of  peace    July  is,  isee,  c 

176,  s.  5,  v.  14,  p 
-   92. 

other  offense  made  punishable  with  penitentiary  confinement  by  the  law  of  the 
State,  etc.,  may  legally  be  visited  with  this  punishment.    (Ibid.,  114,  par  4.) 

The  term  "  penitentiary  "  as  employed  in  this  article  has  reference  to  civil  prisons 
only,  as  the  penitentiary  of  the  United  States  Or  District  of  Columbia  at  "Washington, 
the  public  prisons  or  penitentiaries  of  the  different  States,  and  the ' '  penitentiaries 
erected  by  the  United  States  "  (see  section  1892,  Revised  Statutes)  in  most  of  the 
Territories.  Tho  military  prison  at  Leavenworth  is  not  a  penitentiary  in  the  sense 
of  the  article.  The  term  "  State  (or  State's)  prison  "  in  a  sentence  is  'equivalent  to 
penitentiary.  (Ibid.,  par.  5.) 

A  military  prisoner  duly  sentenced  or  committed  to  a  penitentiary  becomes  sub- 
ject to  the  government  and  rules  of  the  institution.  (Ibid.,  par.  6.) 

Where  a  soldier  is  sentenced  to  be  confined  in  a  penitentiary,  the  proper  reviewing 
authority  may  legally  designate  for  the  execution  of  the  punishment  any  State  or 
Territorial  penitentiary  within  his  command.  Where  there  is  no  such  penitentiary 
available  for  the  purpose,  or  desirable  to  be  resorted  to,  he  will  properly  submit  the 
case  to  the  Secretary  of  War  for  the  designation  of  a  proper  penitentiary.  (Ibid., 
par.  7  ) 

A  court-martial,  in  imposing  by  its  sentence  the  punishment  of  confinement  in  a 
penitentiary,  is  not  required  to  follow  the  statute  of  the  United  States  or  of  the 
State,  etc.,  as  to  the  term  of  the  confinement.  It  may  adjudge,  at  its  discretion,  a 
less  or  a  greater  term  than  that  affixed  by  such  statute  to  the  particular  offense.  At 
the  same  time  the  court  will  often  do  well  to  consult  the  statute,  as  indicating  a  rea- 
sonable measure  of  punishment  for  the  offense.  (Ibid.,  par.  8.) 

Where  a  court-martial  specifically  sentences  an  accused  to  confinement  in  a  ' '  mili- 
tary prison,  '  he  can  not  legally  be  committed  to  a  penitentiary,  although  such  form 
of  imprisonment  would  be  authorized  by  the  character  of  his  offense.  But  where  a 
sentence  of  confinement  is  expressed  in  general  terms,  as  where  it  directs  that  the 
accused  shall  be  confined  '  in  such  place  or  prison  as  the  proper  authority  may  order, ' 
or  in  terms  to  such  effect,  held  that  the  same  may,  under  this  article,  legally  be  exe- 
cuted by  the  commitment  of  the  party  to  a  penitentiary,  to  be  designated  by  the 
reviewing  officer  or  Secretary  of  War,  provided,  of  course,  the  offense  is  of  such  a 
nature  as  to  warrant  this  form  of  punishment.  (Ibid.,  par.  9.) 

Held  that  penitentiary  confinement  could  not  legally  be  adjudged  upon  a  conviction 
of  a  violation  of  the  twenty-first  article,  alleged  in  the  specification  to  have  consisted 
in  the  lifting  up  of  a  weapon  (a  pistol)  against  a  commanding  officer  and  discharging 
it  at  him  with  intent  to  kill.  By  charging  the  offense  under  this  article  the  Govern- 
ment elected  to  treat  it  as  a  purely  military  offense,  subject  only  to  a  military  punish- 
ment. So,  upon  a  conviction  of  joining  in  a  mutiny,  in  violation  of  article  22,  held 
that  a  sentence  of  confinement  in  a  penitentiary  would  not  be  legal  although  the 
mutiny  involved  a  homicide,  set  forth  in  the  specification  as  an  incidental  aggravat- 
ing circumstance.  To  have  warranted  such  a  punishment  in  either  of  these  cases 
the  Government  should  have  treated  the  act  as  a  "  crime,"  and  charged  and  brought 
it  to  trial,  as  such,  under  article  62.  (Ibid.,  115,  par.  10.) 

Where  the  act  is  charged  as  a  crime  under  article  62,  and  charge  and  specification 
taken  together  show  an  offense  punishable  with  confinement  in  a  penitentiary  by  the 
law  of  the  locus  of  the  crime,  the  sentence  may  legally  adjudge  such  a  punishnient. 
So  held,  in  a  case  where  charge  and  specification  together  made  out  an  allegation  of 
perjury  under  section  5392,  Revised  Statutes.  (Ibid.,  par.  11.) 

"Obtaining  money  under  false  pretenses"  is  punishable  by  confinement  in  a  peni- 
tentiary by  the  laws  of  Arizona.  A  sentence  of  court-martial  imposing  this  pun- 
ishment, on  conviction  of  an  offense  of  this  description  committed  in  this  Territory, 
charged  as  a  crime  under  article  62,  held  authorized  by  article  97.  (Ibid.,  par.  12.) 

A  conviction  of  a  larceny  of  property  of  such  slight  value  as  not  to  authorize  this 
punishment  under  the  local  law  would  not  warrant  a  sentence  of  confinement  in  a 
penitentiary.  In  a  case  of  larceny  the  court  should  inform  itself  as  to  whether  the 
value  of  the  property  stolen  be  not  too  small  to  ^permit  of  penitentiary  confinement 
for  the  offense  under  the  law  of  the  State,  etc.  (a)  (Ibid,,  par.  13.) 

A  punishment  of  confinement  in  a  penitentiary,  where  legal,  may  be  mitigated  to 
confinement  in  a  military  prison  or  at  a  military  post.  (Ibid.,  116,  par.  15.) 

A  discharged  soldier,  serving  a  sentence  of  confinement  in  a  State  or  Territorial 
penitentiary,  still  remains  under  military  control,  at  least  so  far  as  that  his  sentence 
may,  by  competent  military  authority,  or  by  the  President,  bo  remitted,  or  may  be 
mitigated— as,  for  example,  to  confinement  in  a  military  prison  or  at  a  military  post. 
Where  the  place  of  confinement  is  a  State  or  Territorial  penitentiary  which  is  within 
a  department  command,  the  commander  may  legally  remit  or  mitigate  the  sentence. 
But  the  President  may  limit  this  authority  by  excluding  such  penitentiaries  from 
the  department  command.  (But  now  the  function  of  remitting  the  sentences  of  dis- 
charged soldiers  confined  in  penitentiaries  is,  by  orders,  restricted  to  the  President. 
Paragraph  916,  Army  Regulations  of  1895,  Circular  No.  5  (H.  A.),  1888.)  (Ibid., 
par.  16.) 

a  See  G.  0. 44,  Eighth  Army  Corps,  1862;  G.  C.  M.  0.  63,  Department  of  the  Platte, 

1872. 


750  THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 

no  officer  shall  be  dismissed,  except  in  pursuance  of  the 
sentence  of  a  court-martial,  or  in  mitigation  thereof.1 

1  Dismissal  by  Executive  order  is  quite  distinct  from  dismissal  by  sentence.  The 
latter  is  a  punishment;  the  former  is  removal  from  office,  (a)  The  power  to  dismiss, 
which,  as  being  an  incident  to  thepower  to  appoint  public  officers,  had  been  regarded 
since  1789  as  vested  in  the  President  by  the  Constitution,  (b)  was,  for  the  first  time 
in  1866  (by  the  act  of  July  13  of  that  year,  reenacted  in  the  second  clause  of  the  pres- 
ent ninety-ninth  article  of  war  and  in  section  1229,  Revised  Statutes),  expressly 
divested  by  Congress  in  so  far  as  respects  its  exercise  in  time  of  peace,  (c)  By  the 
statute  law  it  is  now  authorized  only  in  time  of  war.  During  the  late  war  it  was 
exercised  in  a  great  number  of  cases,  sometimes  for  the  purpose  of  summarily  rid- 
ding the  service  of  unworthy  officers,  sometimes  in  the  form  of  a  discharge  or  muster- 
out  of  officers,  whose  services  were  no  longer  required.  The  distinction  between 
this  species  of  dismissal  and  dismissal  by  sentence  is  illustrated  by  the  fact  that  the 
former  has,  with  the  sanction  of  legal  authority,  been  repeatedly  ordered  in  cases 
where  a  court-martial  has  previously  acquitted  the  officer  of  the  very  offenses  on 
account  of  which  the  summary  action  has  been  resorted  to.  (d)  (Dig.  J.  A.  Gen.,  p. 
369,  par.  1.) 

The  Executive,  in  summarily  dismissing  an  officer,  can  not  at  the  same  time  deprive 
him  of  pay  due.  Nor  can  the  right  of  an  officer  to  his  pay,  for  any  period  prior  to  a 
summary  'dismissal  ordered  in  his  case,  be  divested  by  dating  back  of  the  order  of 
dismissal.  Such  an  order  can  not  be  made  to  relate  back  so  as  to  alfect  the  status  or 
rights  of  the  officer  as  they  existed  before  the  date  of  the  taking  effect  of  the  dis- 
missal. (Ibid.,  par.  2.) 

A  summary  dismissal  "by  order  of  the  Secretary  of  War"  is  in  law  the  act  of  the 
President,  (e)  (Ibid.,  370,  par.  3.) 

A  department  or  army  commander  can  have,  of  course,  no  authority  to  summarily 
dismiss  or  discharge  an  officer  from  the  military  service.  But  where,  in  a  case  of  a 
regular  officer,  this  authority  was  in  fact  exercised,  and  the  President,  treating  his 
office  as  vacant,  proceeded  to  fill  the  vacancy  by  a  new  appointment,  held  that  he  had 
made  the  dismissal  his  own  act  and  legalized  the  same.  (/)  So  where  (in  1863)  an 
officer  of  volunteers  was  dismissed  by  the  order  of  an  army  commander,  which  was 
never  ratified  in  terms  by  the  President,  but  a  successor,  appointed  to  the  vacancy  by 
the  governor  of  the  State,  was  accepted  and  mustered  in  by  the  United  States,  held  (in 
1880)  that  the  dismissal  was  to  be  regarded  as  having  been  substantially  ratified  and 
legalized.  So  an  unauthorized  dismissal,  by  order  of  a  regular  officer,  may  be  iu 
effect  made  operative  by  a  subsequent  appointment  and  confirmation  of  a  successor, 
as  in  Blake's  Case,  post,  sec.  12.  (Ibid.,  par.  4.) 

A  summary  dismissal  of  an  officer  does  not  properly  take  effect  until  the  order  of 
dismissal  or  an  official  copy  of  the  same  is  delivered  to  him,  or  he  is  otherwise  offi- 
cially notified  of  the  fact  of  the  dismissal.  (Ibid.,  par.  5.) 

Held  that  it  could  not  affect  the  operation  of  an  order  summarily  dismissing  an 
officer  as  "second  lieutenant"  that,  before  its  being  communicated  to  him  by  being 
promulgated  to  the  regiment,  he  had  become  by  promotion  a  first  lieutenant.  (Ibid., 
par.  6.) 

A  dismissal  of  an  officei  by  Executive  order  does  not  operate  to  disqualify  him  for 
reappointment  to  military  office,  or  for  appointment  to  civil  office  under  the  United 
States.  (Ibid,  par.  7.) 

There  can  be  no  revocation  of  a  duly  executed  order  of  dismissal,  however  un- 
merited or  injudicious  the  original  act  may  be  deemed  to  have  been.  For,  distinct  as 
dismissal  by  order  is,  in  its  nature,  from  dismissal  by  sentence  (see  section  1,  ante), 
the  effect  of  the  proceeding  in  divesting  the  office  is  the  same  in  each  case.  An  officer 
dismissed  by  an  order,  though  his  dismissal  may  have  involved  no  disgrace,  is  as- 
similated to  an  officer  dismissed  by  sentence  in  so  far  that  he  is  completely  relegated 
to  a  civil  status,  having  in  law  no  nearer  or  otuer  relation  to  the  military  service 
than  has  any  civilian  who  has  never  been  in  the  Army.  Thus  an  order  assuming 
to  revoke  a  legal  order  of  dismissal  is  as  unauthorized  as  it  is  ineffectual.  The 
original  dismissal  is  an  act  done  which  can  not  be  undone,  and  the  order,  which  is 
the  evidence  of  it,  is  therefore  incapable  of  revocation  or  recall,  (g)  Nor  can  that 
be  effected  indirectly  which  can  not  legally  be  done  directly.  An  officer  dismissed 
by  Executive  order  can  not  be  relieved  by  being  allowed  to  resign  or  be  retired,  or 
by  being  granted  an  honorable  discharge.  For,  in  order  to  be  discharged,  etc.,  from 
the  Army,  he  must  first  be  in  the  Army,  and  there  is  but  one  mode  by  which  an 
officer  once  legally  separated  from  the  Army  can  be  put  into  it,  viz,  by  a  new  ap- 
pointment according  to  the  Constitution. (A)  (Ibid.,  371,  par.  8.) 

That  a  summary  dismissal  is  not  revocable  by  an  Executive  order  is  established 
law.  Where  an  officer  duly  summarily  dismissed  in  July,  1863,  and  subsequently 

a  See  7  Opins.  Att.  Gen.,  251. 

6  See,  as  among  the  principal  authorities  on  this  subject,  Commonwealth  v.  Bussier, 
5  Senrt.  &  Rawle,  461 ;  Ex  parte  Hennen,  13  Peters,  258,  259 ;  United  States  v.  Guthrie, 
17  Howard,  307 ;  4  Opins.  Att.  Gen.,  1,  609-613;  6  id. ,5-6;  7  id.,  251;  8  id.,  230-232;  12 
id.,  424-426;  Sergeant,  Const.  Law,  373;  2  Story's  Corns.,  sec.  1537,  note;  1  Kent's 
Corns.,  310;  2  Marshall's  Washington.  162. 

c  See  16  Opins.  Att.  Gen. ,  315. 

dSee  12  Opins.  Att.  Gen.,  427. 

eSee  12  Opins.  Att.  Gen.,  421 ;  McElrath  v.  United  States,  12  C.  Cls.  R.,  202. 

/See  opinion  of  Att.  Gen.  (16  Opins.,  298),  noted  under  article  106. 

0See4Opins.  Att.  Gen. ,124;  12  id.,  424-428;  14  id.,  520;  15  id.,  658.  A  contrary  view 
expressed  by  the  Court  of  Claims,  in  its  earlier  period,  in  a  series  of  cases  (see  Smith 
v.  United  States,  2  C.  Cls.  R.,  206;  Winters  v.  United  States,  3  id.,  136;  Barnes  v.  United 
States,  4  id.,  216;  Montgomery  v.  United  States,  5  id.,  93)  was  finally  practically 
abandoned  in  McElrath  v.  United  States,  12  id.,  201. 

fcSee  JOpins.  Att.  Gen.,  235;  12  id.,  421;  13  id.,  5;  McElrath  v.  United  States,  12 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


751 


ART.  100.  When  an  officer  is  dismissed  from  the  service    Publication  of 

officers  cashiered 

for  cowardice  or  fraud  the  sentence  shall  further  direct  f°r  cowardice  or 

that  the  crime,  punishment,  name,  and  place  of  abode  of   100  Art.  War. 

the  delinquent  shall  be  published  in  the  newspapers  in  and 

about  the  camp,  and  in  the  State  from  which  the  offender 

came  or  where  he  usually  resides  ;  and  after  such  publica- 

tion it  shall  be  scandalous  for  an  officer  to  associate  with 

him.1 

ART.  101.  When  a  court-martial  suspends  an  officer  from  0^"^®  p8aion  of 
command,  it  may  also  suspend  his  pay  and  emoluments  for    101  Art-  war. 
the  same  time,  according  to  the  nature  of  his  oflense.2 


restored  by  an  order  assuming  to  revoke  the  order  of  dismissal,  procured  to  be  passed 
by  Congress  in  1890,  an  act  recognizing  his  restoration  as  legal,  which,  however,  was 
vetoed  by  the  President,  held  that  his  status  was  that  of  a  person  who  had  been 
illegally  in  the  military  service  since  the  date  of  the  order  of  so-called  revocation. 
(Ibid.,  par.  9.) 

Where,  by  the  direction  of  the  President,  an  order  was  issued  canceling  the 
muster  in  of  a  volunteer  officer  on  account  of  facts  indicating  that  he  was  not  a  fit 
person  to  hold  a  commission,  held  that  this  was  a  legal  exercise  of  the  authority  of 
summary  dismissal  for  cause  vested  in  the  President  by  the  act  of  July  17,  1862. 
(Ibid.,  372,  par.  10.) 

The  President  had  not  the  same  power  of  dismissal  in  the  case  of  a  volunteer  offi- 
cer as  he  has  in  that  of  a  regular  officer.  This  for  the  reason  that  the  tenure  of  office 
of  the  former  is  for  a  fixed  term  and  for  a  limited  time  only  ;  the  power  to  dismiss  is 
thus,  in  his  case,  not  an  incident  of  the  appointing  power,  (a)  But  the  President 
was  invested  with  a  special  power  of  dismissal  of  volunteer  officers  by  the  act  of 
Congress  of  July  17,  1862.  (Ibid.,  par.  11.) 

Held  that  the  ruling  in  Blake's  Case  (b)  was  applicable,  and  that  the  office  of  an  army 
officer  might  legally  DO  vacated  by  the  appointment  and  commission  of  a  successor, 
although  Between  the  office  of  the  original  officer  and  that  of  the  successor  there 
may  have  intervened  a  tenure  by  a  third  officer. 

Thus  (1)  Captain  A  was  dismissed  from  his  office  without  legal  authority;  (2) 


Captain  B,  an  unassigned  officer,  was  assigned  to  the  captaincy  of  A,  and  held  it 
ill  his  own  resignation,  one  year  and  three  months  later;  (3)  Lieutenant  C  was 


til 


then  promoted  and  appointed  to  t  he  office  and  hih  appointment  was  confirmed.  Held 
that  Lieutenant  C  was  the  legal  incumbentof  the  office.  (Ibid.,  par.  12  ) 

Held  that  the  ruling  of  the  Supreme  Court  in  the  case  of  Blake  was  not  applicable  to 
volunteer  officers  of  State  organizations,  and  that  a  governor  of  a  State,  who  had 
duly  appointed  a  certain  volunteer  officer  in  a  regiment,  was  not  empowered  to  dis- 
miss him  by  si  ply  appointing  to  the  same  office,  commissioning,  and  causing  to  be 
mustered  into  the  united  States  service,  another  person.  (Ibid.,  par.  13.) 

Heldihat  it  was  quite  evidently  the  intention  of  Congress  in  the  act  of  July  15, 

1870,  section  12,  that  the  commissions  held  by  the  officers  who  remained  unassigned 
on  January  1,  1871,  should  cease  on  that  day.    No  action  on  the  part  of  a  mustering 
officer  was  required  to  carry  the  law  into  effect,  as  is  shown  by  G.  0.  1  of  January  2, 

1871,  in  which  the  separation  from  the  service  on  January  1  of  the  unassigned  offi- 
cers was  formally  announced.     (Ibid.,  par.  14.) 

'The  terms  "cowardice"  and  "fraud1  employed  in  this  article  may  be  considered 
as  referring  mainly  to  the  offenses  made  punishable  by  articles  42  and  (50.  With 
these,  however,  may  be  regarded  as  included  all  offenses  m  which  fraud  or  cowardice 
is  necessarily  involved,  though  the  same  be  not  expressed  in  terms  in  the  charge  or 
specification.  (Dig.  Opin.  J.  A.  Gen.,  117,  par.  1.) 

Though  the  injunction  of  the  article  as  to  the  direction  to  be  added  in  the  sentence 
should  of  course  regularly  be  complied  with,  a  failure  so  to  comply  will  not  affect 
the  validity  of  the  punishment  of  dismissal  adjudged  by  the  sentence,  (c)  The 
declaration  of  the  article  that  after  the  publication  "it  shall  be  scandalous  for  an 
officer  to  associate  with  "  the  dismissed  officer,  though  it  has  in  a  few  cases  (d)  been 
incorporated  in  the  sentence,  is  not  intended  to  be,  and  should  not  be,  so  expressed 
by  the  court.  (Ibid.,  par.  2.) 

*  2The  punishment  of  suspension,  as  imposed  by  sentence,  is  usually  in  the  form  of  a 
suspension  from  rank,  or  from  command,  for  a  stated  term,  sometimes  accompanied 
by  a  suspension  frompay  forthe  same  period.  Suspension  from  rank  includes  sus- 
pensionfrom  command.  (Ibid.,  729,  par.  1.) 

A  suspension  from  rank  does  not  affect  the  right  of  the  officer  to  his  office.  He 
retains  the  same  as  before,  and,  as  an  officer,  remains  subject  as  before  to  military 
control  as  well  as  to  the  jurisdiction  of  a  court-martial  for  any  military  offense  com- 
mitted pending  the  term  of  suspension,  (e)  (Ibid.,  par.  2.) 

The  effect  of  a  suspension  from  rank  (beside  detaching  the  officer  from  the  per- 
formanceof  the  duties  incident  t  o  his  ran  k)  is  to  deprive  him  of  any  right  of  promotion 


aSeoMechen  011  Public  Officers,  p.  283,  sec.  445. 

bBlake  v.  U.  S.,  103  U.  S.,  231. 

cNote  the  action  taken  in  the  case  published  in  G.  C.  M.  O.  27,  War  Department, 
1872. 

d  As  in  cases  published  in  G.  O.  (A.  and  I.  G.  '  >.)  of  May  13,  1820;  G.  0.  168,  Depart- 
ment of  the  Missouri,  1865. 

e  See  &  Opins.  Att.  Gen.,  740  ;  6  id.,  715. 


752  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

to  a  vacancy  in  a  higher  grade,  occurring  pending  the  term  of  suspension,  and 
which  he  would  have  been  entitled  to  receive  by  virtue  of  seniority  had  he  not  been 
suspended,  such  right  accruing  to  the  officer  next  in  rank.  But  no  such  loss  of 
promotion  is  incident  to  a  mere  suspension  from  command.  (Ibid.,  730,  par.  3.) 

Suspension  from  rank  does  not,  however,  deprive  tlio  officer  of  the  right  to  rise  in 
files  in  his  grade — upon  the  promotion,  for  example,  of  the  senior  officer  of  such 
grade.  The  number  of  an  officer  in  the  list  of  his  grade  as  not  an  incident  of  his 
rank,  but  of  his  appointment  to  office  as  conferred  and  dated,  and,  as  we  have  seen, 
suspension  does  not  affect  the  office.  Moreover,  \ossofli\eais  a  continuing  punishment, 
and  if  held  to  be  involved  in  suspension  from  rank,  the  result  would  be  that,  for  an  in- 
definite period  after  the  term  of  suspension  had  expired,  tlio  officer  would  remain 
under  punishment,  the  sentence  imposed  by  the  court  being  thus  added  to  in  exe- 
cution, contrary  to  a  well-known  principle  of  military  law,  (Ibid.,  par.  4.) 

It  is  further  the  effect  of  a  suspension  from  rank  that  the  officer  loses  for  the  time 
the  minor  rights  and  privileges  of  priority  and  precedence  annexed  to  rank  or  com- 
mand. Among  these  is  the  right  to  select  quarters  relatively  to  other  officers.  And 
where  quarters  are  to  be  selected  by  several  officers,  one  of  whom  is  under  sentence 
of  suspension  from  rank,  the  suspended  officer  necessarily  has  the  last  choice.  Or 
rather  he  has  no  choice,  but  quarters  are  assigned  him  by  the  commander;  for,  being 
still  an  officer  of  the  Army,  though  without  rank,  he  is  entitled  to  some  quarters. 
But  advised  that  an  officer  sentenced,  to  be  suspended  from  rank  could  not,  because 
of  such  suspension  alone,  be  deprived  of  quarters  previously  duly  selected,  and 
occupied  at  the  time  of  the  suspension,  such  a  sentence  not  affecting  a  right  pre- 
viously accrued  and  vested.  (Ibid.,  par  5.) 

Suspension  from  rank  does  not  involve  a  status  of  confinement  or  arrest.  In  sen- 
tencing an  officer  to  be  suspended  from  rank,  it  is,  indeed,  not  unusual  for  the  court 
to  require  that  he  be  confined  during  the  term  of  suspension  to  his  proper  station, 
or  that  of  his  reciment,  etc.,  i,  e.,  that  the  sentence  bo  executed  there.  Where  this  is 
not  done,  while  the  suspended  officer  is  not  entitled  to  a  leave  of  absence,  it  can  not 
affect  the  execution  of  his  sentence  to  grant  him  one,  and  leaves  of  absence  are  not 
unfrequently  granted  under  such  circumstances.  (Ibid.,  par,  6.) 

Suspension  from  rank  or  command  does  not  involve  a  loss  or  authorize  a  stoppage 
of  pay  for  the  period  of  suspension,  (a)  Pay  cannot  be  forfeited  by  implication. 
Unless,  therefore,  the  sentence  imposes  a  suspension  from  rank  (or  command)  "and 
pay"  or  in  terms  to  that  effect,  the  suspended  officer  remains  as  much  entitled  to 
his  pay  as  if  he  had  not  been  suspended  at  all,  and  to  require  him  to  forfeit  any  pay 
would  be  adding  to  the  punishment  and  illegal.  (Ibid.,  731,  par.  7.) 

"Where,  however,  the  suspension  is  in  terms  extended  by  the  sentence  to  pay,  the 
pay  ia  forfeited  absolutely,  not  merely  withheld.  And  all  the  pay  is  forfeited,  unless 
otherwise  expressly  indicated  in  the  sentence.  The  forfeiture  imposed  by  a  sentence 
of  suspension  from  rank  (or  command)  and  pay  fora  designated  term  is  a  forfeiture 
of  the  pay  of  that  specific  term,  the  suspension  of  the  rank  and  that  of  the  pay  being 
coincident.  Under  such  a  sentence  the  officer  can  not,  legally  be  deprived  of  pay  due  for 
a  period  prior  to  the  suspension.  Where  an  officer  was  sentenced  to  suspension  from 
rank  and  pay  for  six  months,  held,  that  his  entire  pay  for  those  months  was  abso- 
lutely forfeited,  notwithstanding  that  the  pay  of  officers  of  his  grade  was  increased 
by  statute  pending  the  term.  (Ibid.,  par.  8.) 

A  sentence  of  suspension  from  rank  and  pay  does  not  affect  the  right  of  the  officer 
to  the  allowances  which  are  no  part  of  his  pay,  (b)  as  the  allowance  for  rent  of  quar- 
ters, as  also  the  allowance  for  fuel,  or  rather  right  to  purchase  fuel  at  reduced  rate. 
(Ibid.,  par.  9.) 

The  status  of  an  officer  under  suspension  is  the  same  whether  such  suspension  has 
been  imposed  directly  by  sentence  or  by  way  of  commutation  for  a  more  severe  pun- 
ishment. Thus,  where  a  sentence  of  dismissal  was  commuted  to  suspension  from 
rank  on  half  pay  lor  one  year,  held,  that  the  officer,  while  forfeiting  the  rights  and 
privileges  of  rank  and  command  during  such  terra,  was  yet  amenable  to  trial  by 
court  martial  for  a  military  offense  committed  pending  the  same.  (Ibid.,  par.  10.) 

Where  an  officer,  when  under  a  sentence  of  suspension,  is  ordered  by  the  com- 
mander who  approved  the  sentence,  or  some  higher  competent  authority,  to  resume 
his  command  or  the  performance  of  his  regular  military  duty,  such  order  will  in 
general  operate  as  a  constructive  remission  of  the  punishment  and  thus  terminate 
the  suspension,  (c)  (Ibid.,  732,  par.  11.) 

In  rare  cases  the  form  "to  be  suspended  from  the  service"  has  been  employed  in 
the  sentence.  Such  a  suspension  is  equivalent  in  substance  to  a  suspension  from 
rank. 

A  still  rarer  form,  "to  be  suspended  from  duty,"  has  been  deemed  to  be  practically 
equivalent  to  a  sentence  of  suspension  from  'command,  (d)  These  forms  are  now 
rarely  resorted  to.  (Ibid.,  par.  12.) 

A  sentence,  "to  be  suspended  from  the  Military  Academy,"  in  a  case  of  a  cadet, 
practically  severs  him  from  the  military  service  as  a  cadet  during  the  term  of  the 
suspension.  It  is  usually  added  in  such  a  sentence  that  at  the  end  of  such  term 
the  party  is  to  join  the  next  lower  class.  (Ibid.,  par.  13.) 

Like  dismissal,  suspension  takes  effect  upon  and  from  notice  of  the  approval  of  the 
sentence  officially  communicated  to  the  officer,  either  by  the  promulgation  of  the 
same  at  his  station,  or,  where  he  is  absent  therefrom  by  authority,  by  the  delivery 
to  him  of  a  copy  of  the  order  of  approval  or  other  form  of  official  personal  notification 
of  the  fact  of  the  approval.  (Ibid.,  par.  14.) 

Suspension,  as  a  punishment  for  a  noncommissioned  officer,  is  not  authorized  in 
terms  in  article  101,  nor  is  it  contemplated  in  the  Army  Regulations.  It  has  been 

a  See  4  Opins.  Att.  Gen.,  444;  6  id.,  203. 

frMcNaghten,  27. 

cSeeMcNaghten,  22. 

d  Suspension  from  duty,  as  distinguished  from  suspension  from  rank,  is  a  recog- 
nized punishment  in  the  naval  service.  Navy  Regulations,  art.  32,  sec.  2 ;  Harwood, 
134-5.  The  form  "to  be  suspended  from  rank  and  duty"  occurs  in  G.  C.  M.  0.  19  of 
1885. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  753 

ART.  102.  No  person  shall  be  tried  a  second  time  for  the 

same  offense.1  e1b2  Art.  war. 

ART.  103.  No  person  shall  be  liable  to   be  tried  and  A.  Limitation  of 

time  of  prosecu- 

punished  by  a  general  court-martial  for  any  offense  which  tion. 
appears  to  have  been  committed  more  than  two  years 
before  the  issuing  of  the  order  for  such  trial,  unless,  by 
reason  of  having  absented  himself,  or  of  some  other  mani- 
fast  impediment,  he  shall  not  have  been  amenable  to  justice 
within  that  period. 

No  person  shall  be  tried  or  punished  by  a  court-martial  desertion*1  etc.*  n 
for  desertion  in  time  of  peace  and  not  in  the  face  of  an 
enemy,  committed  more  than  two  years  before  the  arraign- 
ment of  such  person  for  such  offense,  unless  he  shall  mean-    Exception. 
while  have  absented  himself  from  the  United  States,  in    Apr  n  1890 
which  case  the  time  of  his  absence  shall  be  excluded  inv-26'p-54 
computing  the  period  of  the  limitation:   Provided,  That^f^™118  of 
said  limitation  shall  nofc  begin  until  the  end  of  the  term  for 
which  said  person  was  mustered  into  the  service.2    Act  of 
April  11,  1890  (26  Stat.  L.,  54). 

ART.  104.  No  sentence  of  a  court-martial  shall  be  carried  sentence0™1  °f 
into  execution  until  the  same  shall  have  been  approved  by  27^  >1|7|^  1892)  v- 
the  officer  ordering  the  court,  or  by  the  officer  commanding    104  *»*•  War- 
for  the  time  being.3    Act  of  July  27,  1892,  (27  Stat.  L.,  278.) 

ART.  105.  No  sentence  of  a  court-martial,  inflicting  the  f  confirmation 
punishment  of  death,  shall  be  carried  into  execution  until  tenceea 
it  shall  have  been  confirmed  by  the  President;  except  in  2ol 
the  cases  of  persons  convicted,  in  time  of  war,  as  spies,  c^ 
mutineers,  deserters,  or  murderers,  and  in  the  cases 

-  = 

adjudged  in  but  rare  cases,  (a)  and  can  not  be  regarded  as  sanctioned  by  principle  or     105  Art.  War. 

usage.     (Ibid.,  733,  par.  15.) 

Suspension  not  divesting  the  officer  of  his  office  or  commission,  but  simply  hold- 
ing in  abeyance  the  rights  and  functions  attached  to  his  rank  or  command,  he  prop- 
erly reverts,  when  the  term  of  the  punishment  is  completed,  to  his  former  rank  and 
the  command  attached  thereto,  and  continues  to  hold  and  exercise  the  same  as  before 
his  arrest  or  trial,  (b)  (Ibid.,  par.  16.) 

Tinder  existing  usage  (1892)  an  officer  suspended  by  sentence  from  rank  and  com- 
mand is  deemed  entitled  to  retain  his  quarters.  But  such  rule  may,  in  some  cases, 
work  a  considerable  inconvenience  as  well  as  prejudice  to  discipline,  as  where,  for 
example,  the  suspended  officer  is  a  post  commander,  and  continues,  pending  the  term 
of  his  suspension,  and  while  another  officer  has  succeeded  him  as  commander,  to 
occupy  the  proper  commanding  officer's  quarters.  An  army  regulation  prescribing 
that  an  officer  in  such  a  status  shall  not  be  entitled  to  retain  or  to  select  quarters 
by  virtue  of  rank,  but  shall  have  assigned  him  any  quarters  that  are  available  at 
his  late  station  or  elsewhere,  advised  as  desirable  to  oo  adopted.  (Ibid.,  par.  17.) 

Under  the  ruling  of  the  Secretary  of  War,  as  published  in  circular  No.  3  (H.  A.), 
1888,  an  officer  under  suspension,  but  not  required  by  his  sentence  to  be  "confined 
to  the  limits  of  his  post,"  is  not  entitled  to  forage  for'his  horse  or  horses  during  the 
term  of  his  suspension.  (Ibid.,  par.  18.) 

Suspension  does  not  affect  pay  unless  expressly  forfeited  in  the  sentence.  Nor 
does  a  commutation  of  dismissal  to  suspension  affect  pay.  Thus,  where  a  sentence 
of  dismissal  of  a  cadet  was  commuted  to  suspension  for  one  year,  held  that  he  was 
entitled,  to  full  pay  during  the  year  of  suspension.  (Ibid.,  par.  19.) 

But  feee  3  Dec.  Second  Comptroller,  §  941. 

'See  notes  to  paragraph  1335,  iante. 

JSee  the  title  "Statutes  of  Imitation,"  in  the  chapter  entitled  MILITARY  TRI- 
BUNALS. 

3  See  the  title  '  '  Eeviewing  authority,  '  '  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

•  aSee  a  comparatively  late  instance  in  G.  C.  M.  0.  33,  Department  of  the  East,  1872. 
&  Sullivan,  who  (p.  88)  traces  this  punishment  to  "the  ecclesiastical  jurisdiction, 
which  admitted  suspension  as  a  minor  excommunication,"  adds,  in  regard  to  the 
officer  sentenced,  "At  the  expiration  of  the  term  of  suspension  he  becomes  a  perfect 
man  again." 

1919  -  48 


356. 


754      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

guerrilla  marauders,  convicted,  in  time  of  war,  of  robbery, 
burglary,  arson,  rape,  assault  with  intent  to  commit  rape, 
or  of  violation  of  tlie  laws  and  customs  of  war;  and  in 
such  excepted  cases  the  sentence  of  death  may  be  carried 
into  execution  upon  confirmation  by  the  commanding  gen- 
eral in  the  field,  or  the  commander  of  the  department,  as 
the  case  may  be.1 

of^fnissaiV'iS     ART.  106.  In  time  of  peace  no  sentence  of  a  court-martial, 
"Toe  Art* '"war  directing  the  dismissal  of  an  officer,  shall  be  carried  into 
execution,  until  it  shall  have  been  confirmed  by  the  Presi- 
dent.1 
Dismissal    b  y      ART.  107.  ~No  sentence  of  a  court-martial  appointed  by 

division  or  bri- 
gade courts.       the  commander  of  a  division  or  of  a  separate  brigade  of 

s.v.  12 i.p.Hso. '    troops,  directing  the  dismissal  of  an  officer,  shall  be  car- 
ried into  execution  until  it  shall  have  been  confirmed  by 
the  general  commanding  the  army  in  the  field  to  which  the 
division  or  brigade  belongs.1 
General    offl-     ART.  108.  No  sentence  of  a  court-martial,  either  in  time 

cers;     sentences 

respecting.        of  peace  or  in  time  of  war,  respecting  a  general  officer,  shall 
be  carried  into  execution,  until  it  shall  have  been  confirmed 


by  the  President. 


Confirmation  ART.  109.  All  sentences  of  a  court-martial  may  be  con- 
ing  court.  or  ""  firmed  and  carried  into  execution  by  the  officer  ordering 
the  court,  or  by  the  officer  commanding  for  the  time  being, 
where  confirmation  by  the  President,  or  by  the  command- 
ing general  in  the  field,  or  commander  of  the  department, 
is  not  required  by  these  articles.' 
ART-  110-  ^°  sentence  adjudged  by  a  field  officer,  detailed 


tence.  to  try  soldiers  of  his  regiment,  shall  be  carried  into  execu 

27,  p.  278.'          tion  until  the  same  shall  have  been  approved  by  the  brigade 

110  Art.  War. 

commander,  or,  in  case  there  be  no  brigade  commander,  by 
the  commanding  officer  of  the  post  or  camp.1  Act  of  July 
27,  1892  (27  Stat.  L.,  278}. 

Suspension  of  ART.  111.  Any  officer  who  has  authority  to  carry  into 
deathen0Cre8d is  execution  the  sentence  of  death,  or  of  dismissal  of  an  offi- 

1^1  Art.  war.  cer,  may  suspend  the  same  until  the  pleasure  of  the  Presi- 
dent shall  be  known;  and,  in  such  case,  he  shall  immedi- 
ately transmit  to  the  President  a  copy  of  the  order  of  suspen- 
sion, together  with  a  copy  of  the  proceedings  of  the  court.1 

Pardon    and     ART.  112.  Every  officer  who  is  authorized  to  order  aaren- 

mitigation  of  _J  .^ 

sentences.         eral  court-martial  shall  have  power  to  pardon  or  mitigate 
aoi,!??,  y,  12,'p!  any  punishment  adjudged  by  it,  except  the  punishment  of 
59iia  Art,  war.  death  or  of  dismissal  of  an  officer.     Every  officer  command- 
ing a  regiment  or  garrison  in  which  a  regimental  or  garrison 


JSee  the  title  "The  reviewing  authority,"  in  the  chapter  entitled   MILITARY 
TRIBUNALS. 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES.  755 

court-rnartial  may  be  held,  shall  have  power  to  pardon  or 
mitigate  any  punishment  which  such  court  may  adjudge.1 
ART.  113.  Every  judge- advocate,  or  person  acting  asfo^r^e^edfo 

such,  at  anv  general  court-martial,  shall,  with  as  much  Judge- Advo- 
cate General. 
expedition  as  the  opportunity  of  time  and  distance  of  place  ^ July  17,1862,0. 

may  admit,  forward  the  original  proceedings  and  sentence    113  Art.  War. 
of  such  court  to  the  Judge- Advocate-General  of  the  Army, 
in  whose  office  they  shall  be  carefully  preserved.2 

ART.  114.  Every  party  tried  by  a  general  court-martial  to^a^ventitled 
shall,  upon  demand  thereof,  made  by  himself  or  by  any    114  «*.  war. 
person  in  his  behalf,  be  entitled  to  a  copy  of  the  proceed- 
ings and  sentence  of  such  court.2 

ART.  115.  A  court  of  inquiry,  to  examine  into  the  nature  aJfo^Joi*  Or" 
of  any  transaction  of,  or  accusation  or  imputation  against,  def  jj Art  War> 
any  officer  or  soldier,  may  be  ordered  by  the  President  or 
by  any  commanding  officer  5  but,  as  courts  of  inquiry  may 
be  perverted  to  dishonorable  purposes,  and  may  be  em- 
ployed, in  the  hands  of  weak  and  envious  commandants, 
as  engines  for  the  destruction  of  military  merit,  they  shall 
never  be  ordered  by  any  commanding  officer,  except  upon 
a  demand  by  the  officer  or  soldier  whose  conduct  is  to  be 
inquired  of.3 

ART.  116.  A  court  of  inquiry  shall  consist  of  one  or  moreco^™V^ruairof 
officers,  not  exceeding  three,  and  a  recorder,  to  reduce  the    116  Art-  War- 
proceedings  and  evidence  to  writing.3 

ART.  117.  The  recorder  of  a  court  of  inquiry  shall  admin-    oaths  of  mem- 

*        "  hers  aud  record- 

ister  to  the  members  the  following  oath:  u  You  shall  well  erof  court  of  in- 
aud  truly  examine  and  inquire,  according  to  the  evidence,    ii?'Art.  war. 
into  the  matter  now  before  you,  without  partiality,  favor, 
affection,  prejudice,  or  hope  of  reward:  so  help  you  God." 
After  which  the  president  of  the  court  shall  administer  to 
the  recorder  the  following  oath :  "  You,  A  B,  do  swear  that 
you  will,  according  to  your  best  abilities,  accurately  and 
impartially  record  the  proceedings  of  the  court  and  the 
evidence  to  be  given  in  the  case  in  hearing:  so  help  you 
God."3 

ART.  118.  A  court  of  inquiry,  and  the  recorder  thereof,  fore  (SlfrtHf  m- 
shall  have  the  same  power  to  summon  and  examine  wit-  ^J^  3>  1863  c. 
nesses  as  is  given  to  courts-martial  and  the  judge- ad  vo-^^vVi2^?' 
cates  thereof.  Such  witnesses  shall  take  the  same  oathjg™,s.25,v.i2,p! 
which  is  taken  by  witnesses  before  courts-martials,4  and  us  Art.  war. 


JSee  the  title  "The  reviewing  authority,"  in  the  chapter  entitled  MILITARY 
TRIBUNALS.  Section  5  of  the  act  of  July  27, 1892  (27  Stat.  L.,  281),  provides  "that 
commanding  officers  authorized  to  approve  the  sentences  of  summary  courts  shall 
have  the  power  to  remit  or  mitigate  the  same."  See  also  note  to  paragraph  2,  "  The 
pardoning  power.1' 

2 See  the  title  "Record  of  proceedings.  '  in  the  chapter  entitled  MILITARY  TRI- 
BUNALS. 

3See  the  title  "Courts  of  inquiry,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

4  So  in  the  roll. 


756  THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 

the  party  accused  shall  be  permitted  to  examine  and  cross- 
examine  them,  so  as  fully  to  investigate  the  circumstances 
in  question.1 

opinion;  when  ART.  119.  A  court  of  inquiry  shall  not  give  an  opinion 
gliiS  Art.  War.  on  the  merits  of  the  case  inquired  of  unless  specially  or- 
dered to  do  so.1 

Authentica-     ART.  120.  The  proceedings  of  a  court  of  inquiry  must  be 

tion  of  proceed- 
ings _of  court  of  authenticated  by  the  signatures  of  the  recorder  and  the 

in?2orlrt.  war.  president  thereof,  and  delivered  to  the  commanding  officer.1 
Proceeding  of     ART.  121.  The  proceedings  of  a  court  of  inquiry  may  be 

court  of  inquiry  J 

used  as  evidence,  admitted  as  evidence  by  a  court-martial,  in  cases  not  capi- 
tal, nor  extending  to  the  dismissal  of  an  officer :  Provided, 
That  the  circumstances  are  such  that  oral  testimony  can- 
not be  obtained.1 
command,     ART.  122.  If.  upon  inarches,  guards,  or  in  quarters,  dif- 

when   diflerent  •  '      *  j     j    , 

corps  happen  to  ferenfc  corps  of  the  Army  happen  to  join  or  do  duty  together, 
J°i22  Art.  War.  the  officer  highest  in  rank  of  the  line  of  the  Army,  Marine 
Corps,  or  militia,  by  commission,  there  on  duty  or  in  quar- 
ters, shall  command  the  whole,  and  give  orders  for  what  is 
needful  to  the  service,  unless  otherwise  specially  directed 
by  the  President,  according  to  the  nature  of  the  case.2 
Kegniar  and     ART.  123.  In  all  matters  relating  to  the  rank,  duties, 
on  same  footing  and  rights  of  officers,  the  same  rules  and  regulations  shall 
Ma™?,  i86?,c.  apply  to  officers  of  the  Regular  Army  and  to  volunteers 
435' 8'  p  commissioned  in,  or  mustered  into  said  service,  under  the 

123  Art.  war.  ]awg  of  the  ^^^  gtates?  for  a  limited  period.2 

Rank  of  militia     ART.  124.  Officers  of  the  militia  of  the  several  States, 
with^omcer^dfwhen  called  in  to  the  service  of  the  United  States,  shall  on 
tefr  forcesV°  un  all  detachments,  courts-martial,  and  other  duty  wherein 
159,  s!'2?v.  14,' p!  they  may  be  employed  in  conjunction  with  the  regular  or 
48i24  Art.  war.  volunteer  forces  of  the  United  States,  take  rank  next  after 
all  officers  of  the  like  grade  in  said  regular  or  volunteer 
forces,  notwithstanding  the  commissions  of  such  militia 
officers  may  be  older  than  the  commissions  of  the  said  offi- 
cers of  the  regular  or  volunteer  forces  of  the  United  States.2 

cer?efiwtL  °®'  AKT<  125t  In  case  of  the  deata  of  anY  officer,  the  major 
126  Art.  war.  of  his  regiment,  or  the  officer  doing  the  major's  duty,  or 
the  second  officer  in  command  at  any  post  or  garrison,  as  the 
case  may  be,  shall  immediately  secure  all  his  effects  then 
in  camp  or  quarters,  and  shall  make,  and  transmit  to  the 
office  of  the  Department  of  War,  an  inventory  thereof.3 

ffects801"     ART>  12G'  In  case  of  the  deatn  of  an7  soldier,  the  com- 
126  Art.  War.  manding  officer  of  his  troop,  battery,  or  company  shall  im- 
mediately secure  all  his  effects  then  in  camp  or  quarters, 

!See  the  title  "Courts  of  inquiry,"  in  the  chapter  entitled  MILITARY  TRIBUNALS. 

2  See  chapter  en  titled  HANK  AND  COMMAND,  ETC. 

3  See  the  title  ' '  Deceased  officers, "  in  the  chapter  entitled  COMMISSIONED  OFFICERS. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  757 

-and  shall,  in  the  presence  of  two  other  officers,  make  an 
inventory  thereof,  which  he  shall  transmit  to  the  office  of 
the  Department  of  War. 
ART.  127.  Officers  charged  with  the  care  of  the  effects  of   Effects  of  de- 

ceased  officers 

deceased  officers  or  soldiers  shall  account  for  and  deliver  and  soldiers  to 

be  accounted  for. 

the  same,  or  the  proceeds  thereof,  to  the  legal  representa-    12?  Art.  war. 

tives  of  such  deceased  officers  or  soldiers.    And  no  officer 

so  charged  shall  be  permitted  to  quit  the  regiment  or  post 

until  he  has  deposited  in  the  hands  of  the  commanding 

officer  all  the  effects  of  such  deceased  officers  or  soldiers 

not  so  accounted  for  and  delivered.1 

ART.  128.  The  foregoing  articles  shall  be  read  and  pub- 
lished,  once  in  every  six  months,  to  every  garrison,  regi- 
meiit,  troop,  or  company  in  the  service  of  the  United  States,  regiment,  etc. 
and  shall  be  duly  observed  and  obeyed  by  all  officers  and 
soldiers  in  said  service. 

SEC.  1343.  All  persons  who,  in  time  of  war,  or  of  rebel-    Spies. 

Apr.  10,  leOo,  c. 

lion  against  the  supreme  authority  of  the  United  States,  20.  »•  2,  y.  2  p. 

•371 ;  -T  60. lo.  lov£, 

shall  be  found  lurking  or  acting  as  spies,  in  or  about  any  c.  25, 8.4,  v.  12.^. 
of  the  fortifications,  posts,  quarters,  or  encampments  of  c.  75,8.38^,' 12,  pi 
any  of  the  armies  of  the  United  States,  or  elsewhere,  shall 
be  triable  by  a  general  court-martial,  or  by  a  military  coin- 
mission,  and  shall,  on  conviction  thereof,  suffer  death. 

1This  article,  in  connection  with  the  two  preceding  articles,  provides  for  the 
securing  of  the  effects  of  deceased  officers  and  soldiers,  making  inventory  of  the 
same,  and  accounting  for  them  to  the  proper  legal  representative,  etc.  These  articles 
have  special  reference  to  cases  of  deaths  of  military  persons  while  it?  active  service 
in  the  field  or  at  remote  military  posts,  and  their  provisions  apply  only  to  such  effects 
as  are  left  by  the  deceased  "in  camp  or  quarters."  (See  articles  125  and  126.)  An 
attempt  by  the  commander,  etc.,  to  secure  effects  left  elsewhere  would  not  be  within 
the  authority  here  given,  and  might  subject  the  officer  to  the  liability  ol  an  admin- 
istrator; such  a  proceeding  would  not  therefore  be  advisable,  (a)  Upon  accounting 
to  the  duly  qualified  legal  representative,  as  directed  in  the  article,  the  responsibility 
of  the  officer  is  discharged,  and  it  remains  for  the  representative  to  disposeof  the  prop- 
erty according  to  the  law  applicable  to  the  case.  (Dig.  Opin,  J.  A.  Gen.  139,  par.  1.) 

A  military  employee  of  the  United  States  service  having  died  in  the  service,  his 
remains,  at  the  request  of  his  relatives,  were  sent  to  them  on  a  Mississippi  steam- 
boat. Wages  being  due  to  the  employee  at  the  time  of  his  death,  the  disbursing 
officer  paid  out  of  these  the  charges  of  the  transportation  and  turned  over  the  bal 
ance  to  the  man's  heirs.  Held,  in  view  of  the  tenor  and  effect  of  this  article,  that 
the  disposition  of  the  funds  in  this  case  was  erroneous,  and  that  the  full  wages  due 
(without  deduction)  should  have  been  accounted  for  to  the  "legal  representatives"  of 
the  deceased.  (Ibid.,  140,  par  2.) 

See  also  paragraphs  1003,  1004,  1077,  and  1078,  ante. 

a  Compare  Samuel,  659;  Hough  (Practice),  558. 


TEEATIES,  CONVENTIONS,  AND  AGREEMENTS. 


AMELIORATION    OF    THE    CONDITION    OF    THE    WOUNDED 
IN   TIME   OF   WAR. 

Aug.  22, 1864.  Convention  between  the  United  States,  Baden,  Switzerland, 
Belgium,  Denmark,  Spain,  France,  Hesse,  Italy,  Nether- 
lands, Portugal,  Prussia,  Wiirtemberg,  Sweden,  Greece,  Great 
Britain,  Mecklenburg- Schwerin,  Turkey,  Bavaria,  Austria, 
Russia,  Persia,  Roumania,  Salvador,  Montenegro,  Servia, 
Bolivia,  Chili,  Argentine  Republic,  Japan  and  Peru;  with 
additional  articles:  For  the  amelioration  of  the  wounded  in 
armies  in  the  field;  concluded  August  22,  1864;  acceded  to 
by  the  President  March  1,  1882;  accession  concurred  in  by 
the  Senate  March  16,  1882;  proclaimed  as  to  the  original 
convention,  but  with  reserve  as  to  the  additional  articles, 
July  26,  1882.1 

contracting     The  Swiss  Confederation:        La   Confederation  suisse; 

parties. 

His  Eoyal  Highness  the  Son  Altesse  Eoyale  le  Grand- 
Grand  Duke  of  Baden ;  His  Due  de  Bade;  Sa  Majeste  le 
Majesty  the  King  of  the  Bel-  Eoi  des  Beiges;  Sa  Majeste 
gians;  His  Majesty  the  King  le  Koi  de  Daneinark;  Sa  Ma- 
of  Denmark ;  Her  Majesty  the  jeste  la  Eeine  d'Espagne ;  Sa 
Queen  of  Spain ;  His  Majesty  Majeste  PEmpereurdesFran- 
the  Emperor  of  the  French;  §ais;  Son  Altesse  Eoyale  le 
His  Eoyal  Highness  the  Grand-Due  de  Hesse;  Sa 
Grand  Duke  of  Hesse;  His  Majeste  le  Eoi  d'ltalie;  Sa 
Majesty  the  King  of  Italy;  Majeste  le  Eoi  des  Pays-Bas; 
His  Majesty  the  King  of  the  Sa  Majeste  le  Eoi  de  Portu- 
Netherlands;  His  Majesty  gal  et  des  Algarves ;  Sa  Ma- 
the  King  of  Portugal  and  of  jeste  le  Eoi  de  Prusse;  Sa 
the  Algarves;  His  Majesty  Majest6  le  Eoi  de  Wurtem- 
tbe  King  of  Prussia ;  His  Ma-  berg, — egalement  aniines  du 
jesty  the  King  of  Wurtem-  de"sir  d'adoucir  autant  qu'il 
berg,  being  equally  animated  depend  d'eux,  les  maux  in- 
with  the  desire  to  soften,  as  separables  de  la  guerre;  de 

1  The  President's  ratification  of  the  act  of  accession,  as  transmitted  to  Berne  and 
exchanged  for  the  ratifications  of  the  other  signatory  and  adhesory  powers,  embraces 
the  Trench  text  of  the  convention  of  August  22,  1864,  and  the  additional  articles  of 
October  20, 1868.  The  French  text  is  therefore,  for  all  international  purposes,  the 
standard  one. 

758 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 


759 


much  as  depends  on  them, 
the  evils  of  warfare,  to  sup- 
press its  useless  hardships 
and  improve  the  fate  of 
wounded  soldiers  on  the  field 
of  battle,  have  resolved  to 
conclude  a  convention  to  that 
effect,  and  have  named  for 
their  plenipotentiaries,  viz: 

The  Swiss  Confederation : 
Guillatime  Henri  Dufour, 
Grand  Officer  of  the  Imperial 
Order  of  the  Legion  of  Honor, 
General  in  Chief  of  the  fed- 
eral army,  Member  of  the 
Council  of  the  States;  Gus- 
tave  Moynier,  President  of 
the  International  Eelief  Com- 
mittee for  wounded  soldiers, 
and  of  the  Geneva  Society  of 
Public  Utility;  and  Samuel 
Lehmann,  federal  Colonel, 
Doctor  in  Chief  of  the  federal 
army,  Member  of  the  Na- 
tional Council; 

His  Royal  Highness  the 
Grand  Duke  of  Baden :  Rob- 
ert Volz,  Knight  of  the  Order 
of  the  Lion  of  Zsehringen,  M. 
D.,  Medical  Councillor  at  the 
Direction  of  Medical  Affairs ; 
and  Adolphe  Stein  er,  Knight 
of  the  Order  of  the  Lion  of 
Za^hringen,  Chief  Staff  Phy- 


sician 


His  Majesty  the  King  of 
the  Belgians:  Auguste  V^is- 
schers,  Officer  of  the  Order 
of  Leopold,  Councillor  at  the 
Council  of  Mines; 

His  Majesty  the  King  of 
Denmark:     Charles     Emile 
Fenger,  Commander  of  the 
Order    of   Dauebrog,    deco 
rated  with  the  silver  cross  of 


supprimer  les  rigueurs  inu- 
tiles  et  d'ameliorer  le  sort  des 
militaires  blesses  sur  les 
champs  de  bataille,  ont  re"- 
solu  de  conclure  une  conven- 
tion a  cet  effet  et  ont  nomme 
pour  leurs  Plenipotentiaries, 
savoir : 

La  Confederation   suisse: 

r 

le  Sieur  Guillaume-Henri 
Dufour,  Grand-Officier  de 
1'ordre  Imperial  de  la  Legion 
d'Honneur,  General  en  chef 
de  I'arrne'e  federale,  Membre 
du  Conseil  desEtats;  le  Sieur 
Gustave  Moynier,  President 
du  Comite  international  de 
secours  pour  les  militaires 
blesses  et  de  la  Societe'  gene- 
voise  d'utilite  publique ;  et  le 
Sieur  Samuel  Lehmann,  Co- 
lonel federal,  Medecin  en  chef 
de  1'armee  federale,  Membre 
du  Conseil  national; 

Son  Altesse  R  o  y  a  1  e  le 
Grand-Due  de  Bade :  le  Sieur 
Robert  Volz,  Chevalier  de 
1'Ordre  du  Lion  de  Za3hrin- 
gen,  Docteur  en  medecine, 
Conseiller  medical  a  la  Direc- 
tion des  affaires  medicales; 
et  le  Sieur  Adolphe  Steirier, 
Chevalier  del'Ordre  du  Lion 
de  Zsehringen,  Medecin-ma- 
j°r; 

Sa  Majeste  le  Roi  des  Bei- 
ges: le  Sieur  Auguste  Vis- 
schers,  Officier  de  1'Ordre  de 
Leopold,  Conseiller  an  Con- 
seil des  mines; 

Sa  Majeste  le  Roi  de  Dane- 
mark  :  le  Sieur  Charles-fimile 
F  e  n  g  e  r ,  Comm  an  deur  de 
1'Ordre  du  Danebrog,  decore 
de  la  croix  d'argent  dumeme 


760 


THE   MILITARY    LAWS   OF   THE    UNITED    STATES. 


the  same  Order,  Grand  Cross 
of  the  Order  of  Leopold  of 
Belgium,  &c.,  &c.,  His  Coun- 
cillor of  State; 

Her  Majesty  the  Queen  of 
Spain:  Don  Jos6  Heriberto 
Garcia  de  Quevedo,  Gentle- 
man of  Her  Chamber  on  ac- 
tive service,  Knight  of  the 
Grand  Cross  of  Isabella  the 
Catholic,  Numerary  Com- 
mander of  the  Order  of 
Charles  III.,  Knight  of  the 
first  class  of  the  Royal  and 
Military  Order  of  St.  Ferdi- 
nand, Officer  of  the  Legion 
of  Honor  of  France,  Her  Min- 
ister-Resident to  the  Swiss 
Confederation ; 

His  Majesty  the  Emperor 
of  the  French :  Georges 
Charles  Jagerschmidt,  Offi- 
cer of  the  Imperial  Order  of 
the  Legion  of  Honor,  Officer 
of  the  Order  of  Leopold  of 
Belgium,  Knight  of  the  Order 
of  the  Red  Eagle  of  Prussia 
of  the  third  class,  &c.,  &c., 
Sub-Director  at  the  Ministry 
of  Foreign  Affairs;  Henri 
Eugene  SeguineaudePr6val, 
Knight  of  the  Imperial  Order 
of  the  Legion  of  Honor,  deco- 
rated with  the  Imperial  Order 
of  the  Medjidie  of  fourth  class, 
Knight  of  the  Order  of  Saints 
Maurice  and  Lazarus  of  Italy, 
&c.,  &c.,  military  Sub-Com- 
missioner of  first  class;  and 
Martin  Francois  Boudier, 
Officer  of  the  Imperial  Order 
of  the  Legion  of  Honor,  deco- 
rated with  the  Imperial  Or- 
der of  the  Medjidie"  of  the 
fourth  class,  decorated  with 


Ordre,  Grand'Croix  de  1'Or- 
dre  de  Leopold  de  Belgique, 
&c.,  &c.,  Son  Conseiller 
d'etat; 

Sa  Majest6  la  Reine  d'Es- 
pagne:  le  Sieur  Don  Jose 
Heriberto  Garcia  de  Que- 
vedo, Gentilhomme  de  sa 
Chambre  avec  exercice,  Che- 
valier Grand'Croix  d'Isabelle 
la  Catholique,  Commandeur 
numeraire  de  FOrdre  de 
Charles  III.,  Chevalier  de 
premiere  classe  de  1'Ordre 
Royal  et  Militaire  de  St.  Fer- 
dinand, Officier  de  la  Legion 
d'Honneur  de  France,  Son 
Ministre-Resident  aupres  de 
la  Confederation  suisse; 

Sa  Majeste  FEmpereur  des 
Francais:  le  Sieur  Georges- 
Charles  Jagerschmidt, 
Officier  de  1'Ordre  Imperial 
de  la  Legion  d'Honiieur, 
Officier  de  1'Ordre  de  Leo- 
pold de  Belgique,  Chevalier 
de  1'Ordre  de  FAigle  rouge 
de  Prussede  troisieme  classe, 
&c.,  &c.,  Sous-Directeur  au 
Ministere  des  Affaires  l^tran- 
geres ;  le  Sieur  Henri-Eugene 
Seguineau  de  Preval,  Che- 
valier de  1'Ordre  Imperial  de 
la  Legion  d'Hoimeur,  decore 
de  FOrdre  Imperial  dti  Medji- 
die de  quatrieme  classe,  Che- 
valier de  1'Ordre  des  Saints 
Maurice  et  Lazare  d'ltalie, 
&c.,  &c.,  Sous-intendant  inili- 
taire  de  premiere  classe;  et 
le  Sieur  Martin-Fraiiyois 
Boudier,  Officier  de  1'Ordre 
Imperial  dela  Legion  d'Hou- 
neur,  decore'  de  la  inedaille  de 
la  valeur  militaire  d'ltalie, 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


761 


the  medal  of  Military  Valor 
of  Italy,  &c.,  &c.,  doctor  in 
chief  of  second  class  ; 

His  Eoyal  Highness  the 
Grand  Duke  of  Hesse: 
Charles  Auguste  Brodriick, 
Knight  of  the  Order  of  Philip 
the  Magnanimous,  of  the  Or- 
der of  St.  Michael  of  Bavaria, 
Officer  of  the  Koyal  Order 
of  the  Holy  Savior,  &c.,  &c., 
Chief  of  Battalion,  Staff  Offi- 
cer ; 

His  Majesty  the  King  of 
Italy:  Jean  Capello,  Knight 
of  the  Order  of  Saints  Mau- 
rice and  Lazarus,  His  Consul- 
General  to  Switzerland,  and 
Felix  Baroffio,  Knight  of  the 
Order  of  Saints  Maurice  and 
Lazarus,  Doctor  in  Chief  of 
medical  division; 

His  Majesty  the  King  of 
the  Netherlands:  Bernard 
Ortuinus  Theodore  Henri 
Westenberg,  Officer  of  His 
Order  of  the  Crown  of  Oak, 
Knight  of  the  Orders  of 
Charles  III.  of  Spain,  of  the 
Crown  of  Prussia,  of  Adolphe 
of  Nassau,  L.  D.,  His  Secre- 
tary of  Legation  at  Frank- 
fort; 

His  Majesty  the  King  of 
Portugal  and  of  the  Algarves : 
Jose  Antonio  Marques, 
Knightof  the  Order  of  Christ, 
of  Our  Lady  of  the  Concep- 
tion of  Villa  Vi9osa,  of  Saint 
Benedict  of  Aviz,  of  Leopold 
of  Belgium,  &c.,  M.  D.  Sur- 
geon of  Brigade,  Sub  Chief 
to  the  Department  of  Health 
at  the  Ministry  of  War; 


&c.,  &c.,  m^decin  principal  de 
deuxieme  classe; 

Son  Altesse  Eoyale  le 
Grand-Due  de  Hesse:  le 
Sieur  Charles- Auguste  Brod- 
riick,  Chevalier  de  POrdre  de 
Philippe  le  Maguanime,  de 
POrdre  de  St.  Michel  de 
Baviere,  Officier  de  POrdre 
Eoyal  du  St.  Sauveur,  &c., 
&c.,  Chef  de  bataillou  detat- 
niajor; 

Sa  Majeste  le  Eoi  d'ltalie: 
Sieur  Jean  Capello,Chevalier 
de  POrdre des  Saints  Maurice 
et  Lazare,  Son  Consul  G£- 
neral  en  Suisse,  et  le  Sieur 
Felix  Baroffio,  Chevalier  de 
POrdre  des  Saints  Maurice 
et  Lazare,  Medecin  de  divi- 
sion; 

Sa  Majeste  le  Eoi  des  Pays- 
Bas :  le  Sieur  Bernard-Ortu- 
inus  Theodore  -  Henri  Wes- 
tenberg, Officier  de  Son  Ordre 
de  la  Couroune  de  Chene, 
Chevalier  des  Ordres  de 
Charles  III.  d'Espagne,  de 
la  Couronne  de  Prusse, 
d' Adolphe  de  Nassau,  Doc- 
teur  en  droit,  Son  Secretaire 
de  Legation  a  Fraiicfort; 

Sa  Majeste  le  Eoi  de  Por- 
tugal et  des  Algarves:  le 
Sieur  Jose- Antonio  Marques, 
Chevalier  de  POrdre  du 
Christ,  de  Notre-Dame  de  la 
Conception  de  Villa- Vicosa, 
de  Saint-Benoit  d'Aviz,  de 
Leopold  de  Belgique,  &c., 
Docteur  en  medecine  et  chi. 
rurgie,Chirurgiendebrigade, 
Sous-Chef  du  D6partement 
de  Sant6  au  Ministere  de  la 
Guerre; 


THE    MILITARY   LAWS   OF   THE   UNITED    STATES. 


His  Majesty  the  King  of 
Prussia:  Charles  Albert  de 
Kamptz,  Knight  of  the  Order 
of  the  Bed  Eagle  of  second 
class,  &c.,  &c.,  &c.,  His  En- 
voy Extraordinary  and  Min- 
ister Plenipotentiary  to  the 
Swiss  Confederation,  Private 
Councillor  of  Legation ;  God 
efroi  Frederic  Fra^ois  Lref- 
fler,  Knight  of  the  Order  of 
the  Eed  Eagle  of  third  class, 
&c,,  &c.,  M.  D.  Physician  in 
Chief  of  the  fourth  Army 
Corps ;  Georges  Hermann 
Jules  Eitter,  Knight  of  the 
Order  of  the  Crown  of  third 
class,  &c.,  &c.,  Private  Coun- 
cillor at  the  Ministry  of  War ; 


His  Majesty  the  King  of 
Wiirteinberg :  ChristopheUl- 
ricHahn,  Knight  of  the  Order 
of  Saints  Maurice  and  La- 
zarus, «&c.,  Doctor  of  Philoso- 
phy and  Theology,  Member 
of  the  Central  Royal  Direc- 
tion for  Charitable  Institu- 
tions: 

Who,  after  having  ex- 
changed their  powers,  and 
found  them  in  good  and  due 
form,  agree  to  the  following- 
articles  : 
Hospitals  and  ARTICLE  I.  Ambulances 

ambulances  with 

sick  or  wounded  and  military  hospitals  shall 

protected  and . 

held  inviolate,  be  acknowledged  to  be  neu- 
ter, and,  as  such,  shall  be 
protected  and  respected  by 
belligerents  so  long  as  any 
sick  or  wounded  may  be 
therein. 

Exception.          Such  neutrality  shall  cease 
if  the  ambulances  or  hospi- 


Sa  M  a  j  e  s  t  e  le  Eoi  de 
Prusse:  le  Sieur  Charles- 
Albert  de  Kamptz,  Chevalier 
de  TOrdre  de  TAigle  rouge  de 
seconde  classe,  &c.,  &c.,  &c., 
Son  Envoy 6  Extraordinaire 
et  Ministre  Plenipotentiaire 
pres  la  Confederation  suisse, 
Conseiller  intime  de  Lega- 
tion; le  Sieur  Godefroi-Fre"- 
deric  Francois  Loeffler,  Che- 
valier de  FOrdre  de  FAigle 
rouge  detroisieme  classe,&c., 
&c.,  Docteur  en  me'decine, 
Medecin  general  du  qua- 
trieme  corps  d'armee,  et  le 
Sieur  Georges  Hermann, 
Jules  Eitter,  Chevalier  de 
TOrdre  de  la  Couronne  de 
troisieme  classe,  &c.,  &c.- 
Conseiller  intime  au  Minis- 
ter e  de  la  Guerre; 

Sa  Majest6  le  Eoi  de  Wur- 
temberg :  le  Sieur  Christophe- 
Ulric  Hahu,  Chevalier  de 
POrdr'e  des  Saints  Maurice 
et  Lazare,  &c.,  Docteur  en 
philosophic  et  theologie, 
Membre  de  la  Direction  cen- 
trale  et  Eoyale  pour  les  eta- 
blissements  de  bienfaisance : 

Lesquels,  apres  avoir 
echange  leurs  pouvoirs, 
trouve"s  en  bonne  et  due 
forme,  sont  convenus  des 
articles  suivants : 

ARTICLE  I.  Les  ambu- 
lances et  les  hopitaux  mili- 
taires  seront  reconims  neu- 
tres,  et,  comme  tels,  proteges 
et  respectes  par  les  bellige- 
rants  aussi  longtemps  qu'il 
s'y  trouvera  des  malades  ou 
des  blesses. 

La  neutralite  cesserait,  si 
ces  ambulances  ou  ces  hopi- 


THE   MILITARY    LAWS   OF   THE   UNITED   STATES. 


763 


tals  should  be  held  by  a 
military  force. 

ART.  II.  Persons  employed 
in  hospitals  and  ambulances, 
comprising  the  staff  for  su- 
perintendence, medical  serv- 
ice, administration,  transport 
of  wounded,  as  well  as  chap- 
lains, shall  participate  in  the 
benefit  of  neutrality,  whilst 
so  employed,  and  so  long  as 
there  remain  any  wounded  to 
bring  in  or  to  succor. 

ART.  III.  The  persons  des- 
ignated in  the  preceding 
article  may,  even  after  occu- 
pation by  the  enemy,  con- 
tinue to  fulfill  their  duties  in 
the  hospital  or  ambulance 
which  they  serve,  or  may 
withdraw  in  order  to  rejoin 
the  corps  to  which  they 
belong. 

Under  such  circumstances, 
when  these  persons  shall 
cease  from  their  functions, 
they  shall  be  delivered  by  the 
occupying  army  to  the  out- 
posts of  the  enemy. 

ART.  IV.  As  the  equip- 
ment of  military  hospitals 
remains  subject  to  the  laws 
of  war,  persons  attached  to 
such  hospitals  can  not,  in 
withdrawing,  carry  away  any 
articles  but  such  as  are  their 
private  property. 

Under  the  same  circum- 
stances an  ambulance  shall, 
on  the  contrary,  retain  its 
equipment. 

ART.Y.  Inhabitants  of  the 
country  who  may  bring  help 
to  the  wounded  shall  be  re- 
spected, and  shall  remain 
free.  The  generals  of  the 


taux  e~taient  gardes  par  une 
force  militaire. 
ART.  II.  Le  personnel  des   Employees, 

etc.,  respected  as 

hopitaux  et  des  ambulances,  neutrals. 
comprenant  Pintendance,  les 
services  de  sante",  d'adminis- 
tration,  de  transport  des 
blesses,  ainsi  que  les  auind- 
niers,  participera  au  benefice 
de  la  neutrality  lorsqu'il 
fonctionnera,  et  tant  qu'il 
restera  des  blesse's  a  relever 
ou  a  secourir. 

ART.  III.  Les  personnes^J™^^6,^ 
de"signees  dans  Particle  pre-  occupying  forces. 
cedent  pourront,  meine  apres 
Poccupation    par    Pennemi, 
continuer    a    remplir    leurs 
fonctions  dans  Phopital  ou 
Pambulance  qu'elles  desser- 
vent,  ou  se  retirer  pour  re- 
joindre  le  corps  auquel  elles 
appartiennent. 

Dans  ces  circonstances, 
lorsque  ces  personnes  cesse- 
ront  leurs  fonctions,  elles 
seront  remises  aux  avant- 
postes  ennemis,  par  les  soins 
de  Parmee  occupante. 

ART.  IV.  Le  materiel  des 
hopitaux  militaires  demeu- 
rant  sournis  aux  lois  de  la 
guerre,  les  personnes  a 


tachees  a  ces  hopitaux  neaway  private 

x  property  only. 

pourront,  en  se  retirant,  em- 
porter  que  les  objets  qui  sont 
leur  proprie"te  particuliere. 

Dans  les  memes  circon- 
stances, au  contraire,  Pambu- 
lance conservera  son  mate- 
riel. 

ART.  V.  Les  habitants  du  ingethSe°w8ounS 
pays  qui  porteront  secours to  remam  free- 
aux  blesses  seront  respectes, 
et  demeureront  libres.    Les 
gene"raux  des  Puissances 


764 


THE   MILITARY   LAWS   OF   THE    UNITED    STATES. 


belligerent  Powers  shall 
make  it  their  care  to  inform 
the  inhabitants  of  the  appeal 
addressed  to  their  humanity, 
and  of  the  neutrality  which 
will  be  the  consequence  of  it. 
Houses  where  Any  wounded  man  enter- 

tbe  wounded  are       .       J 

cared  for  to  be  tamed  and  taken  care  of  in 

a  house  shall  be  considered 

Exemptions  for  as  a  protection  thereto     Any 

care  of  wounded.  .    ,     ,  .,  ,  ,     ,,     , 

inhabitant  who  shall  have 
entertained  wounded  men  in 
his  house  shall  be  exempted 
from  the  quartering  of  troops, 
as  well  as  from  a  part  of  the 
contributions  of  war  which 
may  be  imposed. 
Soldiers  sick  or  AnT.VI.  Woundedor  sick 

wounded  of  any 

nation  to  be  re  soldiers  shall  be  entertained 

lieved  and  cared 

for.  and  taken  care  of,  to  what- 

ever nation  they  may  belong. 

w£ndedeertc. of  Oommanders-in-cliief  shall 
have  the  power  to  deliver 
immediately  to  the  outposts 
of  the  enemy  soldiers  who 
have  been  wounded  in  an 
engagement,  when  circum- 
stances permit  this  to  be  don  e, 
and  with  the  consent  of  both 
parties. 
Soldiers  inca-  Those  who  are  recognized, 

8erviceatoebde  sent  after  their  wounds  are  healed, 
as  incapable  of  serving,  shall 
be  sent  back  to  their  country, 
conditions   of     The  others  may  al  so  be  sent 

return.  i        i  -, . , . 

back,  on  condition  of  not 
again  bearing  arms  during 
the  continuance  of  the  war. 

Evacuations,     Evacuations,  together  with 

©t»c., "to  n3iV6 cibso-  .» 

mte  neutrality    tne  persons  under  whose  di- 
rections they  take  place,  shall 
be  protected  by  an  absolute 
neutrality. 
Hospital,   am-     ART.  VII.   A  distinctive 

bulanco,     and         , 

evacuation  flag,  and  uniform   flag   shall  be 

etc. 


belligerantes  auront  pour 
mission  de  prevenir  les  habi- 
tants de  1'appel  fait  a  leur 
humanite",  et  de  la  neutrality 
qui  en  sera  la  consequence. 

Tout  blesse  recueilli  et 
soigne  dans  line  maison  y 
s  e  r  v  i  r  a  de  sauvegarde. 
Inhabitant  qui  aura  recueilli 
chez  lui  des  blesses  sera  dis- 
pense du  1  o  g  e  m  e  n  t  des 
t  r  o  u  p  e  s  ,  aiusi  que  d'une 
partie  des  contributions  de 
guerre  qui  seraient  imposees. 


ART.  VI.  Les  inilitaires 
blesses  ou  malades  seront 
recueillis  et  soignes,  a  quel- 
que  nation  qu'ils  appartien- 
dront. 

Les  Commandants-en-chef 
auront  la  faculte  de  remettre 
immediatement  aux  avant- 
postes  ennemis,  les  railitaires 
blesses  pendant  le  combat, 
lorsque  les  circon stances  le 
permettront  et  du  consente- 
ment  des  deux  partis. 

Seront  renvoyes  dans  leurs 
pays  ceux  qui,  apres  gtie'ri- 
son,  serout  reconnus  inca- 
pables  de  servir. 

Les  autres  pourront  etre 
egalement  renvoyes,  a  la  con- 
dition de  ne  pas  reprendre 
les  armes  pendant  la  dure"e 
de  la  guerre. 

Les  evacuations,  avec  le 
personnel  qui  les  dirige, 
seront  couvertes  par  uue 
neutralite  absolue. 

ART.  VII.  Un  drapeau  dis- 
tinctif  et  uniforme  sera 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


765 


adopted  for  hospitals,  ambu- 
lances and  evacuations.  It 
must,  on  every  occasion,  be 
accompanied  by  the  national 
flag.  An  arm-badge  (bras- 
sard) shall  also  be  allowed 
for  individuals  neutralized, 
but  the  delivery  thereof  shall 
be  left  to  military  author- 
ity. 

The  nag  and  the  arm-badge 
shall  bear  a  red  cross  on  a 
white  ground. 

ART.  YIII.  The  details  of 
execution  of  the  present  con- 
vention shall  be  regulated 
by  the  commanders-in-chief 
of  belligerent  armies,  accord- 
ing to  the  instructions  of 
their  respective  govern- 
ments,  and  in  conformity  with 
the  general  principles  laid 
down  in  this  convention. 

ART.  IX.  The  high  con- 
tracting Powers  have  agreed 
to  communicate  the  present 
convention  to  those  Govern- 
ments which  have  not  found 
it  convenient  to  send  pleni- 
potentiaries to  the  Interna- 
tional Conference  at  Geneva, 
with  an  invitation  to  accede 
thereto;  the  protocol  is  for 
that  purpose  left  open. 

ART.  X,  The  present  con- 
vention shall  be  ratified,  and 
the  ratifications  shall  be  ex- 
changed at  Berne,  in  four 
months,  or  sooner,  if  possible. 

In  faith  whereof  the  respec- 
tive Plenipotentiaries  have 
signed  it  and  have  affixed 
their  seals  thereto. 

Done  at  Geneva,  the 
twenty- second  day  of  the 


adopte  pour  les  hopitaux,  les 
ambulances  et  les  evacua- 
tions. II  devra  etre,  en  toute 
circonstance,  accompagne  du 
drapeau  national.  Uii  bras-  Arm-badge. 
sard  sera  egalement  admis 
pour  le  personnel  neutralise, 
mais  la  delivrance  en  sera 
laissee  a  Pautorite  militaire. 


Le  drapeau  et  le  brassard  .  Flag  and  arm- 

badge  to  bear  red 
porteront    croix    rouge    sur  cross,  etc. 

fond  blanc. 
ART.  VIII.  Les  de  tails 


d'execution  de  la   presente  vention- 
convention  seront  regies  par 
les    Commandants   en    chef 
des  armees  belligerantes,  d'a- 
pres  les  instructions  de  leurs 
Gouverneinents  respectifs,  et 
conform  ement  aux  principes 
generaux  enonces  dans  cette 
convention. 
ART.  IX.  Les  hautes  Puis-  .  invitation    to 

be  made  to  cer- 

SanceS      COntractauteS      SOUt  tain  governments 

to  accede  to  con- 

con  venues  de  communiquer  vention. 
la  pre~sente  convention  aux 
Gouvernements  qui  n'ont  pu 
envoyer   des  Plenipoten- 
tiaires  a  la  Conference  Inter- 
nationale de  Geneve,  en  les 
i  n  v  i  t  a  n  t  a  y  acceder  5  le    Protocol  to  re. 
protocole  est  a  cet  effet  laisse  maiu  °Pen-  etc- 
ouvert. 

ART.  X.  La  presente  con-  Ratification. 
vention  sera  ratifiee,  et 
les  ratifications  en  seront 
echangees  a  Berne,  dans 
Fespace  de  quatre  rnois,  ou 
plus  tot  si  faire  se  peut. 

En  foi  de  quoi  les  Plenipo-    Signatnrea- 
tentiaires     respectifs     Tout 
sign6e  et  y  ont  appose"  le 
cachet  de  leurs  armes. 

Fait  a  Geneve,  le  vingt- 
deuxieme  jour  du  niois  d'aout 


766 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 


month  of  August  of  the  year 
one  thousand  eight  hundred 
and  sixty -four. 
[L.S.]  General   G.    H.    Du- 
FOUR. 

[L.  S.]   G.  MOYNIER. 

[L.  s.]  Dr.  LBHMANN. 
[L.  &]  Dr.  EGBERT  YOLZ. 
[L.  s.]  STEINER. 
[L.  s.J  YISSCHERS. 
[L.  s.]  FENGER. 
[L.  s.]  J.  HERIBERTO  GAR- 
CIA DE  QUEVEDO. 

[L.  s.)  OH.  JAGERSCHMIDT. 
[L.  s.j  S.  DE  PREVAL. 
[L.  s.]  BOUDIER. 
[L.  s.]  BRODRUCK. 
[L.  s.]  CAPELLO. 
[L.  s.]  F.  BAROFFIO. 

[L.  S.]   WESTENBERG. 

[L.  s.]  Jos£  ANTONIO  MAR 

QUES. 

[L.  s.]  DE  KAMPTZ. 

[L.  S.]   LCEFFLER. 
[L.  S.j   BITTER. 

[L.  s.J  Dr.  HAHN. 


del'aninil  Imit-cent  soixante- 
quatre. 

[L.s.J  General  G.    H.    Du- 

FOUR. 

[L.  s.j  G.  MOYNIER. 
[L.  s.  |  Dr.  LEHMANN. 
[L.  s.    Dr.  EGBERT  VOLZ. 
[L.  s.    STEINER. 

(L.  S.      VlSSCHERS. 

[L.  s.    FENGER. 

[L.  s.  J.  HERIBERTO  GAR- 
CIA DE  QUEVEDO. 

[L  s.|  OH.  JAGERSCHMIDT. 

[L.  s.    S.  DE  PREVAL. 

(L.  s.    BOUDIER. 

[L.  s.    BRODRUCK. 

[L.  s,    GAPELLO. 

[L.  s.    F.  BAROFFIO. 

[L.  s.    WESTENBERG. 

[L.  s.  JOSE  ANTONIO  MAR- 
QUES. 

[L.  s.)  DE  KAMPTZ. 

[L.  s.|  LCEFFLER. 

[L.  s.]  EITTER. 

[L.S.]  Dr.  HAHN.1 


ADDITIONAL  ARTICLES.2 

Proposed    ex-     The  governments  of  North  Ger-        Les    Gouvernements   de  1'Alle- 
8ion8°o\0conven-  many>  Austria,    Baden,   Bavaria,     magne   du    Nord,    de    1'Autriche, 
BelSium>  Denmark,  France,  Great    Bade,  la  Baviere,  la  Belgique,  le 
Britain,   Italy,   the  Netherlands,     Danemark,  la  France,  la  Grande- 

1  The  several  contracting  parties  to  the  said  convention  exchanged  the  ratifications 
thereof  at  Geneva,  on  the  22d  day  of  June,  1865. 

The  several  States  hereinafter  named  have  signified  their  adherence  to  the  above 
convention  in  virtue  of  Article  IX,  on  the  dates  as  noted  in  the  following  list : 

Sweden December  13, 1864. 

Greece January  5-17,  1865. 

Great  Britain February  18, 1865. 

Mecklenburg-Schwerin March  9, 1865. 

Turkey July  5, 1865. 

Wurtemberg June  2, 1866. 

Hesse June  22, 1866. 

Bavaria June  30, 1866. 

Austria July  21, 1866. 

Russia May  10-22, 1867. 

Persia December  5, 1874. 

Roumania November  18-30, 1874. 

Salvador December  30, 1874. 

Montenegro November  17-29, 1875. 

Servia March  24, 1876. 

Bolivia October  16, 1879. 

Chili November  15, 1879. 

Argentine  Republic November  25, 1879. 

Peru April  22, 1880. 

3  On  the  20th  of  October,  1868,  the  above  additional  articles  were  proposed  and  signed 
at  Geneva  on  behalf  of  Great  Britain,  Austria,  Baden,  Bavaria,  Belgium,  Denmark, 
France,  Italy,  Netherlands,  North  Germany,  Sweden  and  Norway,  Switzerland, 
Turkey,  and  Wurtemberg. 


THE   MILITARY   LAWS   OP   THE   UNITED    STATES. 


767 


Sweden  and  Norway,  Switzerland, 
Turkey,  and  Wiirtemberg,  desir- 
ing to  extend  to  armies  on  the  sea 
the  advantages  of  the  Convention 
concluded  at  Geneva  the  22d  of 
August,  1864,  for  the  amelioration 
of  the  condition  of  wounded  sol- 
diers in  armies  in  the  field,  and  to 
further  particularize  some  of  the 
stipulations  of  the  said  Conven- 
tion, have  named  for  their  com- 
missioners: 

1.  North    Germany:    Henri  de 
Rceder,  Lieutenant-General,   En- 
voy Extraordinary  and  Minister 
Plen i poteutiary  of  His  Maj esty  the 
King  of  Prussia  and  of  the  North 
Germanic    Confederation    to   the 
Swiss  Confederation,   Knight   of 
the  Red  Eagle,  second  class,  &c,, 
&c. ;  Fre"de"nc  Lceffler,  Physician 
in  Chief  of  the  Army,  Professor  of 
Military  Medicine,  Knight  of  the 
Order  of  the  Crown,  second  class, 
with   crossed  swords,   &c  ,   &c. ; 
Henry    Kohler,    Naval     Captain, 
Chief  of  Division  at  the  Ministry 
of  the  Navy,  Knight  of  the  Order 
of  the  Crown,  third  class,  &c.,  &c. 

2.  Austria :  Dr.  Jaromir,  Baron 

Mundy,  Staff  Physician  of  first 
class,  Commander  of  the  Order  of 
His  Majesty  Emperor  Francis 
Joseph  of  Austria,  King  of  Hun- 
gary. 

3.  Baden:    Adolphe    Steiner, 
Chief  Staff  Physician,  Knight  of 
the  first  class  of  the  order  of  the 
Lion  of  Zsehringen,  with  oak-leaf. 

4.  Bavaria:  Theodore  Dom- 
pierre,   Chief   Physician  of   first 
class,  Knight  of  the  order  of  St. 
Michael. 

5.  Belgium:  Auguste Visschers, 
Councillor  of  the  Council  of  Mines 
of  Belgium,  Officer  of  the  Order  of 
Leopold. 

6.  Denmark:  John   Barthelemy 
Gaifre  Galiffe,   L.  D.,   Consul  of 
His  Majesty  the  King  of  Denmark 
to  the  Swiss  Confederate  on ,  Knight 
of  the  Order  of  Danebrog  and  of 


Bretagne,  Pltalie,  les  Pays-Bas, 
Suede  et  Norve'ge,  la  Suisse,  la 
Turquie,  le  Wurtemberg,  ddsirant 
etendre  aux  armies  de  mer  les 
avantages  de  la  Convention  con- 
clue  a  Geneve,  le  22  aout  1864,  pour 
1'auaelioration  du  sort  des  mili- 
taires  blessds  dans  les  arme'es  en 
campagne,  et  pre"ciser  davantage 
quelques-unes  des  stipulations  de 
la  dite  Convention,  ont  nomm6 
pour  leurs  Commissaires: 

1.  Allemagne  du  Nord :  Le  Sieur    Commissioners- 
Henri  de  Rceder,  Lieutenant-Gdne"- 
ral,Envoye"  Extraordinaire  et  mini- 

stre  ple"nipotentiaire  desa  Majest6 
le  Roi  de  Prusse  et  de  la  Confe'de'ra- 
tion  de  1'Allemagne  du  Nord  pros 
la  Confederation  suisse,  Chevalier 
de  1'aigle  rouge,  2de  classe,  &c., 
&c. ;  Le  Sieur  Fr6ddric  Lceffler, 
mddecm  ge'ne'ral  de  Famine,  Pro- 
fesseur  de  mddecine  militaire, 
Chevalier  de  1'ordre  de  la  Cou- 
ronne,  2de  classe,  crois6  d'e"pe"es, 
&c.,  &c. ;  Le  Sieur  Henry  Kohler, 
Capitame  de  vaisseau,  Chef  de 
section  au  ministere  de  la  Marine, 
Chevalier  de  1'ordre  de  la  Cou- 
ronne,  3me  classe,  &c.,  &c. 

2.  Autriche:  Le  Sieur  Jaromir, 
baron  Mundy,  Docteur  en  me'de- 
cine  et  chirurgie,  M6decin-Major 
de  premiere  classe,  Commandeur 
de  1'ordre  de    S.   M.   1'Empereur 
Francois-Joseph  d'Autriche,   Roi 
de  Hongrie. 

3.  Bade:  Le  Sieur  Adolphe 
Steiner,     M6decin    d'fitat-Major, 
Chevalier  de  lre  classe  de  1'ordre 
du  Lion  de  Zsehringen,  avec  feuille 
de  Chene. 

4.  Baviere:  Le  Sieur  Theodore 
Dompierre,  M^decin  principal  de 
lre  classe,  Chevalier  de  1'ordre  de 
St.  Michel. 

5.  Belgique:  Le  Sieur  Auguste 
Visschers,   Conseiller  au   Conseil 
des  mines  de  Belgique,  Ofificier  de 
1'ordre  de  Leopold. 

6.  Danemark :    Le    Sieur    John 
Barthelemy   Gaifre  Galiffe,  Doc- 
teur en  droit,  Consul  de  S.  M.  le 
Roi  de  Danemark  pi^s  la  Confe'de'- 
ration  suisse,  Chevalier  de  1'ordre 


768 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES. 


the  Order  of  Saints  Maurice  and 
Lazarus. 

7.  France:  Auguste     Coupvent 
des    Bois,     Rear-Admiral,    Com- 
mander of  the  imperial  order  of 
the  Legion  of  Honor,  &c.,  &c. ; 
Henri  Eugene  Seguineau  de  Prd- 
val,  military  subcommissioner  of 
first  class,  officer  of  the  imperial 
order  of  the  Legion  of  Honor,  &c.3 
&c. 

8.  Great  Britain :  John    Saville 
Lumley,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  Her 
Britannic   Majesty  to   the   Swiss 
Confederation ;  Hastings  Reginald 
Yelverton,  Rear-Admiral    in    the 
service  of  Her  Britannic  Majesty, 
Companion  of  the  Order  of  the 
Bath. 

9.  Italy:  Felix  Baroffio,  Physi- 
cian in  Chief,  Knight  of  the  Order 
of  Saints  Maurice  and  Lazarus,  of 
the  Order  of  the  Crown  of  Italy ; 
Paul  Cottrau,  Captain  of  frigate, 
Knight  of   the  Order  of   Saints 
Maurice  and  Lazarus,  decorated 
with  the  silver  medal  of  military 
Valor. 

10.  The  Netherlands :  Jonkheer 
Hermann  Adri en  Karnebeek,  Vice- 
Admiral,  Aide-de-camp  extraordi- 
nary to  His  Majesty  the  King  of 
the  Netherlands,  decorated  with 
the  civil  and  military  orders  and 
the  crosses  and  medals  of  1815,  of 
1830  of  the  Netherlands,  and  of  the 
campaigns  of  Java,  Grand  Cross  of 
the  military  orders  of  Christ  and 
of  Tunis,  Grand  Officer  of  the  Or- 
der of  Charles  the  Third  of  Spain, 
Commander  of  the  Orders  of  St. 
Anne  of  Russia,  in  diamonds,  of 
Leopold  of  Belgium  and  of  the 
Falcon  of  Saxe-Weimar,  Knight  of 
the  Legion  of  Honor,  decorated 
with  the  medal  of   St.    Helena; 
Bernhard    Ortuinus   Theodore 
Henri  Westenberg,  L.  D.,  Council- 
lor, of  Legation  of  His  Majesty  the 
King  of  the  Netherlands,   Com- 
mander   of    the    Oaken    Crown, 
Grand  Commander  of  the  Order  of 
St.  Michael  of  Bavaria,  Knight  of 
the  Orders  of  Charles  III.  of  Spain, 
of  the  Crown  of  Prussia,  of  Dane- 


du  Danebrog  et  de  celui  des  SS. 
Maurice  et  Lazare. 

7.  France:    Le    Sieur    Auguste 
Coupvent  des  Bois,  Contre-Ami- 
ral,  Commandeur  de  1'ordrc  impd- 
rial  de  la  Ldgion  d'honneur,  &c., 
&c. ;  Le  Siour  Henri  Eugf'ne  So- 
guineau  de  Prdval,  sous-iutendaut 
militaire  de  lre  classe,  officier  de 
1'ordre    imperial     de     la    Legion 
d'honneur,  &c.,  &c. 

8.  Grande-Bretagne:    Le    Sieur 
John  Saville  Lumley,  Envoyd  ex- 
traordinaire et  Ministre  pldnipo- 
tentiaire  de  Sa  Majestd  Britanni- 
que  prts  la  Confdddration  suisse; 
Le  Sieur  Hastings  Reginald  Yel- 
verton, Contre-Amiral  au  service 
de  S.  M.  Britannique,  Compagnon 
de  1'ordre  du  Bain. 

9.  Italie:  Le  Sieur  Felix  Barof- 
fio, Mddecin-directeur,  Chevalier 
de  1'ordre  des  ^SS.  Maurice  et  La- 
zare, de  1'ordre  de  la  Courouue 
d'ltalie;  Le  Sieur  Paul  Cottrau, 
Capitaine  de  frdgate,  Chevalier  de 
1'ordre  des  SS.  Maurice  et  Lazare, 
decord  de  la  mddaille  d'argent  a 
la  Valeur  Militaire. 

10.  Pays-Bas:   Le    Sieur  Jonk- 
heer Hermann  Adrien  van  Kurne- 
beek,  Vice-Amiral,  Aide-de-camp 
eu  service  extraordinaire  de  S.  M. 
le  Roi  des  Pays-Bas,  decore  des 
ordres    militaire    et   civil  et  des 
croix  et  mddailles  de  1815,  de  1830 
Neerlandais  et  des  campagnes  de 
Java,Grand-Croixde  1'ordre  mili- 
taire du  Christ  et  de  celui  de  Tu- 
nis, Grand-Officier  de  1'ordre  de 
Charles  III.   d '  E  s  p  a  g  n  e ,  Com- 
mandeur des  ordres  de  St.  Anne 
en  diamant  de  Russie,  de  Ldopold 
de  Belgique  et  du  Faucon  de  Saxe- 
Weimar,  Chevalier  de  la  Ldgion 
d'honneur,  decord  de  la  inddaillo 
de  St.  Hdlene ;  Le  Sieur  Bernhard 
Ortuinus  Thdodore  Henri  Westeu- 
berg,  docteur  en  droit,  Conseiller 
de  Ldgation  de   S.  M.  le  Roi  des 
Pays-Bas,  Commandeur   de  la 
Couronne  de  Chene,  Grand-Com- 
maudeur  de  1'ordre  de  St.  Michel 
de  Baviere,  Chevalier  de  Tordre 
de  Charles  III.   d'Espagne,  de  la 
Couronne  de  Prusse.  du,  Pan.ebrog 


THE    MILITARY   LAWS    OP   THE    UNITED    STATES. 


769 


brog,  of  Denmark,  and  of  Adolphe 
of  Nassau. 

11.  Sweden  and  Norway :  Ferdi- 
nand Nathaniel  Staaff,  Lieutenant 
Colonel,  military  attacb.6  of  the 
Legation  of  Sweden  and  Norway 
in  Paris,  Knight  of  the  Royal  Or- 
ders of  the  Sword  of  Sweden  and 
of  Saint  Olaf  of  Norway,  officer  of 
the  imperial  order  of  the  Legion 
of  Honor,  as  well  of  Public  In- 
struction in  France,  Knight  of  the 
imperial  order  of  the  Iron  Crown 
of  Austria,  &c.,  &c. 

12.  Switzerland:     Guillaume 
Henri  Dufour,  ex-general  in  chief 
of  the  federal  army,  Grand  Cross 
of  the  Legion  of  Honor;  Gustave 
Moynier,  President  of  the  Interna- 
tional Committee  for  the  relief  of 
the  wounded,  officer  of  the  order 
of   Saints  Maurice  and  Lazarus, 
Knight  of  first  class  of  the  Order 
the  Lion  of  Zsehringen,  Knight  of 
the  Orders  of  the  Polar  Star  and 
of  Our  Lady  of  the  Conception  of 
Villa- Vigosa,   &c.,    &c. ;    Samuel 
Lehmann,  Federal  Colonel,  physi- 
cian in  chief  of  the  federal  army, 
member  of  the  National  Council. 

13.  Turkey:     Husny    Effendi, 
Major,  military  attache"  of  Turkey 
to  Paris,  decorated  with  the  im- 
perial order  of  Medjidie"  of  the  fifth 
class. 

14.  Wiirtemberg:       Christophe 
Hahn,  Doctor  of  philosophy  and 
theology,  member  of  the  central 
direction  for    charitable  institu- 
tions, President  of  the  committee 
from  Wiirtemberg  for  the  wounded, 
Knight  of  the  Order  of  Fre"d6ric 
and  of  Saints  Maurice  and  Lazarus ; 
Edouard  Fichte,  M.  D.,  physician 
in  chief  of  the  army  of  Wiirtemberg 
and  Knight  of  the  Order  of  Fred- 
erick and  the  Order  of  the  Crown 
of  Prussia,  of  third  class  ; 


Who,  having  been  duly  author- 
ized to  that  effect,  agreed,  under 
reserve  of  approbation  from  their 
governments,  to  the  following  dis- 
positions : 

ARTICLE  I.  The  persons  desig- 
pated  in  Article  II.  of  the  Conven- 
1919 49 


de  Danemark  et  d' Adolphe  de 
Nassau. 

11.  Suede  et  Norvege:  Le  Sieur 
Ferdinand  Nathanael  Staaff,  Lieu- 
tenant Colonel,  attach6  militaire 
de  la  Legation  de  Suede  et  de  Nor- 
ve"ge  a  Paris,  Chevalier  des  Ordres 
Royaux  de  l'E*p6e  de  Suede  et  de 
Saint-Olaf  de  Norvdge,  officier  de 
TOrdre  Imperial  de  la  Legion 
d'honneur  ainsi  que  de  1' instruc- 
tion publi  queen  France,  Chevalier 
de  FOrdre  Imperial  de  la  Couronne 
de  fer  d'Autriche,  &c.,  &c. 

12.  Suisse :  Le  Sieur  Guillaume 
Henri   Dufour,  Grand-officier  de 
TOrdre    Imperial    de    la    Legion 
d'Honneur,     ancien     Ge"ne"ral-en- 
chef   de  I'arme'e  fe"d6rale,  ancien 
Membre    du  Conseil    des    Etats; 
Le  Sieur  Gustave  Moynier,  Pre"si- 
dent  du  Comite"  international  de 
secours  pour  les  militaires  blesse's 
et  de  la  Socie'te'  gdnevoise  d'utilit6 
publique;  Le  Sieur  Samuel  Leh- 
mann, Colonel  federal,  Me'decin  en 
chef  de  Parme'e  fe'de'rale,  membre 
du  Conseil  National. 


13  Turquie:  Husny  Effendi, 
Major,  Attache"  Militaire  a  TAm- 
bassade  de  Turquie  a  Paris,  de'core' 
de  1'Ordre  Imperial  du  Medjidie" 
de  5me  classe. 

14.  Wurtemberg:  Le  Sieur 
Christophe  Hahn,  Docteur  en  phi- 
losophic et  the'ologie,  membre  de 
la  direction  centrale  pour  les  e"ta- 
blissements  de  bienfaisance,  Pr6si- 
dent  du  comitd  wurtembergeois 
pour  les  militaires  blesse's ;  Cheva- 
lier des  Ordres  de  Fre'de'ric  et  des 
SS.  Maurice  et  Lazare;  Le  Sieur 
Fjdouard  Fichte.,  Docteur  en  me'de- 
cine,  m6decin  principal  de  I7arm6e 
wurtembergeoise,  Chevalier  de 
1'Ordre  de  Frederic  et  de  1'Ordre 
de  la  Couronne  de  Prusse  de  3me 
classe ; 

Lesquels  dument  autorise"s  acet    Additional  stip- 
effet,  sont  convenus,  sous  reserve  ulations 
d'approbation  de  leurs  Gouverne- 
ments,  des  dispositions  suivantes : 

ARTICLE  I.  Le  personnel  d^signe"    Rights  of  em- 
dans  1'article  deux  de  la  Conven-  g^S^' >£. 
bulances ;  their  release  and  departure. 


770 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Definition  of 
the  term  "ambu- 
lance." 


tion  shall,  after  the  occupation  by 
the  enemy,  continue  to  fulfil  their 
duties,  according  to  their  wants, 
to  the  sick  and  wounded  in  the 
ambulance  or  the  hospital  which 
they  serve.  When  they  request  to 
withdraw,  the  commander  of  the 
occupying  troops  shall  fix  the  time 
of  departure,  which  he  shall  only 
be  allowed  to  delay  for  a  short 
time  in  case  of  military  necessity. 

Salary  of  neu-     ART.  xi.  Arrangements  will  have 

trals,  etc.,  when  ,     ... 

inenemy'shamls.  to  be  made  by  the  belligerent  pow- 
ers to  ensure  to  the  neutralized 
person,  fallen  into  the  hands  of  the 
army  of  the  enemy,  the  entire  en- 
joyment of  his  salary. 

ART.  III.  Under  the  conditions 
provided  for  in  Articles  I.  and  IV. 
of  the  Convention,  the  name  "  am- 
bulance "  applies  to  field  hospitals 
and  other  temporary  establish- 
ments, which  follow  the  troops  on 
the  field  of  battle  to  receive  the 
sick  and  wounded. 

Charges  for  ART.  IV.  In  conformity  with  the 
troo^'aml^co^  ^irit  of  Article  V.  of  the  Conven- 
tributions,  etc.  tion,  and  to  the  reservations  con- 
tained in  the  protocol  of  1864,  it  is 
explained  that  for  the  appointment 
of  the  charges  relative  to  the  quar- 
tering of  troops,  and  of  the  con- 
tributions of  war,  account  only 
shall  be  taken  in  an  equitable 
manner  of  the  charitable  zeal  dis- 
played by  the  inhabitants. 

Wounded  to  be     ART.  V.  In  addition  to  Article 
returned  to  their  ___       „    ,       _, 
country  on  .con-  VI.  of  the  Convention,  it  is  stipu- 

a  gaTn  'bearing lated  that>  with  the  reservation  of 
arms  in  the  war!  officers  whose  detention  might  be 
important  to  the  fate  of  arms  and 
within  the  limits  fixed  by  the  sec- 
ond paragraph  of  that  article,  the 
wounded  fallen  into  the  hands  of 
the  enemy  shall  be  sent  back  to 
their  country,  after  they  are  cured, 
or  sooner  if  possible,  on  condition, 
nevertheless,  of  not  again  bearing 
arms  during  the  continuance  of 
the  war. 

[Articles  concerning  the  Marine.'] 
3oats   picking     ART.  VI.  The  boats  which,  at 

wTreckeed8hloPrtneir  own  risk  an(i  Peril,  during 
wounded,  etc.       an<i  after  an  engagement  pick  up 


tion  continuera,  apres  1'occupation 
par  1'ennemi,  a  donner  dans  la 
mesure  des  besoins,  ses  soins  aux 
malades  et  aux  blesses  de  1' ambu- 
lance ou  de  1'hopital  qu'il  dessert. 
Lorsqu'il  demandera  a  se  retirer, 
le  commandant  des  troupes  occu- 
pantes  fixera  le  moment  de  ce  de"- 
part,  qu'il  ne  pourra  toutefois 
diflfe'rer  que  pour  une  courte  dure"e 
en  cas  de  ndcessite's  militaires. 

ART.  II.  Des  dispositions  de- 
vroiit  etre  prises  par  les  Puissances 
bellige'rantes  pour  assurer  au  per- 
sonnel neutralis6,  tombe"  entre  les 
mains  de  I'arme'e  ennemie,  la  jouis- 
sance  integrate  de  son  traitement. 

ART.  III.  Dans  les  conditions 
pre"vues  par  les  articles  un  et  qua- 
tre  de  la  Convention,  la  d£nomina- 
tion  d'ambulance  s'applique  aux 
hdpitaux  de  campagne  et  autres 
e"tablissements  temporaires  q  u  i 
suivent  les  troupes  sur  les  champs 
de  bataille  pour  y  recevoir  des 
malades  et  des  blesses. 

ART.  IV.  Conform6ment  a  1'es- 
prit  de  Tarticle  cinq  de  la  Conven- 
tion et  aux  reserves  mentioun6es 
au  Protocole  de  1864,  il  est  expli- 
que"  que  pour  la  r6partition  des 
charges  relatives  au  logement  de 
troupes  et  aux  contributions  de 
guerre,  il  ne  sera  tenu  compte  que 
dans  la  mesure  de  I'^quite"  du  zele 
charitable  d<Sploye"  par  les  habi- 
tants. 

ART.  V.  Par  extension  de  Parti- 
cle  six  de  la  Convention,  il  est 
stipule"  que  sous  la  reserve  des  offi- 
ciers  dont  la  possession  importerait 
au  sort  des  armes,  et  dans  les  li- 
mites  fixe~es  par  le  deuxiemepara- 
graphe  de  cet  article,  les  blesse's 
tombds  entre  les  mains  del'ennemi^ 
lors  meme  qu'ils  ne  seraient  pas 
reconnus  incapables  de  servir,  de- 
vrontetre  renvoye"s  dans  leur  pays 
apres  leur  gue"rison,  ou  plus  tot  si 
faire  se  peut,  a  la  condition  toute- 
fois de  ne  pas  reprendre  les  armes 
pendant  la  dure"e  de  la  guerre. 

Articles  ooncernant  la  Marine. 

ART.  VI.  Les  embarcations  qui, 
a  leurs  risques  et  perils,  pendant 
et  apres  le  combat,  recueillent  ou 


THE    MILITARY   LAWS    OF    THE    UNITED    STATES. 


771 


the  shipwrecked  or  wounded,  or 
which  having  picked  them  up, 
convey  them  on  board  a  neutral 
or  hospital  ship,  shall  enjoy,  until 
the  accomplishment  of  their  mis- 
sion, the  character  of  neutrality, 
so  far  as  the  circumstances  of  the 
engagement  and  the  position  of  the 
ships  engaged  will  permit. 

The  appreciation  of  these  cir- 
cumstances is  entrusted  to  the  hu- 
manity of  all  the  combatants.  The 
wrecked  and  wounded  thus  picked 
and  saved  must  not  serve  again 
during  the  continuance  of  the  war. 

ART.  VII.  The  religious,  medi- 
cal, and  hospital  staff  of  any  cap- 
tured vessel  are  declared  neutral, 
and,  on  leaving  the  ship,  may  re- 
move the  articles  and  surgical 
instruments  which  are  their  pri- 
vate property. 

ART.  VIII.  The  staff  designated 
in  the  preceding  article  must  con. 
tinue  to  fulfil  their  functions  in 
the  captured  ship,  assisting  in  the 
removal  of  the  wounded  made  by 
the  victorious  party;  they  will 
ihen  be  at  liberty  to  return  to 
their  country,  in  conformity  with 
the  second  paragraph  of  the  first 
additional  article. 

The  stipulations  of  the  second 
additional  article  are  applicable 
to  the  pay  and  allowance  of  the 
staff. 

ART.  IX.  The  military  hospital 
ships  remain  under  martial  law  in 
all  that  concerns  their  stores; 
they  become  the  property  of  the 
captor,  but  the  latter  must  not 
divert  them  from  their  special  ap- 
propriation during  the  continu- 
ance of  the  war. 

][T/*e  vessels  not  equipped  for 
fighting,  which,  during  peace,  thegov- 
ernment  shall  have  officially  declared 
to  be  intended  to  serve  as  floating 
hospital  ships,  shall,  however,  enjoy 


qui,  ayaut  recueilli  des  naufragds 
ou  des  blesse's,  les  portent  a  bord 
d'un  navire  soit  neutre,  soit  hos- 
pitalier,  jouiront  jusqu'a  raccom- 
plissement  de  leur  mission  de  la 
part  de  neutrality  que  les  circon- 
stances  du  combat  et  la  situation 
des  navires  en  conflit  permettront 
de  leur  appliquer. 

L'appre'ciation  de  ces  cir  con- 
stances  est  confine  a  1'humanite'  de 
tous  les  combattants.  Les  naufra- 
ge~s  et  les  blesse's  ainsi  recueilliset 
sauve's  ne  pourront  servir  pendant 
la  dure"e  de  la  guerre. 

ART.  VII.  Le  personnel  religi-  .  Religious,  med- 
„,.,,,  ical,  and  hospital 

eux,  medical  et  hospitaller  detout  staff  of   a  cap- 


Duties  of  staft 
01 


batiment  capture",  est  d^clard  neu-  ™usteralde' 

tre.  II  emporte,  en  quittant  le 
navire,  les  objets  et  les  instruments 
de  chirurgie  qui  sont  sa  proprie'te' 
particuliere. 

ART.  VIII.  Le  personnel  de"sign<5 
dans  1'article  pr6c6dent  doit  con- 
tinuer  a  remplir  ses  fonctions  sur 
le  batiment  capture",  concourir 
aux  Evacuations  de  blesse's  faites 
par  le  vainqueur,  puis  il  doit  etre 
libre  de  rejoindre  son  pays,  con- 
forme"ment  au  second  paragraphe 
du  premier  article  additionnel  ci- 
dessus. 

Les  stipulations    du   deuxieme     Pay  and  allow- 
article  additionnel  ci-dessus  sont  ance  of  staff< 
applicables  au  traitement  de  ce 
personnel. 

ART.  IX.  Les    batiments   hopi-    Captured  hos- 
taux  militaires  restent  soumis  aux  ggj  SSjr^S 
loisde  la  guerre,  encequiconcernetiallaw.  etc-;  not 
leur  materiel;-  ils  deviennent  la  other%urpose8.0r 
proprie'te'  du  capteur,  mais  celui- 
ci  ne  pourra  les  ddtourner  de  leur 
affection  spdciale  pendant  la  du- 
re"e  de  la  guerre. 


1  In  the  published  English  text,  from  which  this  version  of  the  Additional  Articles 
is  taken,  the  paragraph  thus  marked  in  brackets  appears  in  continuation  of  Article  IX. 
It  is  not,  however,  found  in  the  original  French  text  adopted  by  the  Geneva  con- 
ference, October  20,  1868. 

By  an  instruction  sent  to  the  United  States  minister  at  Berne,  January  20,  1883, 
the  right  is  reserved  to  omit  this  paragraph  from  the  English  text,  and  to  make  any 
other  necessary  corrections,  if  at  any  time  hereafter  the  Additional  Articles  shall  be 
completed  by  the  exchange  of  the  ratifications  hereof  between  the  several  signatory 
and  adhering  powers. 


772 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Merchant  ves 
sels  performing 
hospital  duty  to 
be  treated  as  neu- 
tral, visited  by 
enemy's  cruiser 
rendering  sick 
and  wounded  in- 
capacitated from 
further  war  serv- 
ice. 


Cargo  of  mer- 
chant snip  pro- 
tected ;  when; 
proviso. 


Right   of    bel- 
ligerents. 


"Wounded  o  r 
sick  sailors  and 
soldiers,  when 
embarked,  etc. 


Return   to  na- 
tive country. 


White  flag 
with  red  cross, 
etc.,  used  by  ves- 
sels claiming 
neutrality. 


during  the  war  complete  neutrality, 
both  as  regards  stores,  and  also  as 
regards  their  staff,  provided  their 
equipment  is  exclusively  appropri- 
ated to  the  special  service  on  which 
they  are  employed.'] 

ART.  X.  Any  merchantman,  to 
whatever  nation  she  may  belong, 
charged  exclusively  with  removal 
of  sick  and  wounded,  is  protected 
by  neutrality,  but  the  mere  fact, 
noted  on  the  ship's  books,  of  the 
vessel  having  been  visited  by  an 
enemy's  cruiser,  renders  the  sick 
and  wounded  incapable  of  serv- 
ing during  the  continuance  of  the 
war.  The  cruiser  shall  even  have 
the  right  of  putting  on  board  an 
officer  in  order  to  accompany  the 
convoy,  and  thus  verify  the  good 
faith  of  the  operation. 

If  the  merchant  ship  also  car 
ries  a  cargo,  her  neutrality  will 
still  protect  it,  provided  that  such 
cargo  is  not  of  a  nature  to  be  con- 
fiscated by  the  belligerents. 

The  belligerents  retain  the  right 
to  interdict  neutralized  vessels 
from  all  communication,  and  from 
any  course  which  they  may  deem 
prejudicial  to  the  secrecy  of  their 
operations.  In  urgent  c  a  s  e  H 
special  conventions  may  be  en- 
tered into  between  commanders- 
in-chief,  in  order  to  neutralize 
temporarily  and  in  a  special  man- 
ner the  vessels  intended  for  the 
removal  of  the  sick  and  wounded. 

ART.  XI.  Wounded  or  sick  sail- 
ors and  soldiers,  when  embarked, 
to  whatever  nation  they  may  be- 
long, shall  be  protected  and  taken 
care  of  by  their  captors. 

Their  return  to  their  own  coun- 
try is  subject  to  the  provisions  of 
Article  VI.  of  the  Convention,  and 
of  the  additional  Article  V. 

ART.  XII.  The  distinctive  flag 
to  be  used  with  the  national  flag, 
in  order  to  indicate  any  vessel  or 
boat  which  may  claim  the  benefits 
of  neutrality,  in  virtue  of  the 
principles  of  this  Convention,  is  a 
white  flag  with  a  red  cross.  The 
belligerents  may  exercise  in  this 


ART.  X.  Tout  batiment  de  com- 
merce a  quelque  nation  qu'il  ap- 
partienne,  chargd  exclusivement 
de  blesses  et  de  malades  dont  il 
opere  P6vacuation,  est  couvertpar 
la  neutralit6;  mais  le  fait  seul  de 
la  visite,  notifie"  sur  le  journal  du 
bord,  par  un  croiseur  ennemi,  rend 
les  blesse's  et  les  malades  incapa- 
ble de  servir  pendant  la  durce  de 
la  guerre.  Le  croiseur  aura  meme 
le  droit  de  mettre  a  bord  un  com- 
rnissaire  pour  accompagner  le  con- 
voi  et  verifier  ainsi  la  bonne  fo  ide 
I'op^ration . 

Si  le  batiment  de  commerce 
contenait  en  outre  un  chargement, 
la  neutrality  le  couvrirait  encore 
pourvu  que  ce  chargement  ne  fftt 
pas  do  nature  a  etre  confisque"  par 
le  bellige'rant. 

Les  belligerants  conservent  le 
droit  d'interdire  aux  batiments 
neutralises  toute  communication 
et  toute  direction  qu'ils  j  ugeraient 
nuisibles  au  secret  de  leurs  opdra- 
tions.  Dans  les  cas  urgents,  des 
conventions  particulieres  pourront 
etre  faites  entre  les  commandants- 
en-chef  pour  neutraliser  momenta- 
ne"ment  d'une  nianiere  spe"ciale  les 
navires  destines  a  Pevacuation  des 
blesses  et  des  malades. 

ART.  XL  Les  marins  et  les  mili- 
taires  embarquds,  bless6s  ou  ma- 
lades, a  quelque  nation  qu'ils  ap- 
partiennent,  seront  protege's  et 
soigne"s  par  les  capteurs. 

Leur  repatriement  est  soumis 
aux  prescriptions  de  Particle  six 
de  la  Convention  et  de  Particle 
cinq  additionnel. 

ART.  XII.  Le  drapeau  distinctif 
a  joindre  au  pavilion  national  pour 
indiquer  un  navire  ou  une  einbar- 
cation  quelconque  qui  reclame  le 
bdndfice  de  la  neutrality  en  vertu 
des  principes  de  cette  Convention, 
est  le  pavilion  blanc  a  croix  rouge. 
Les  belligerants  exercent  a  cet 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


773 


respect  any  mode  of  verification 
which  they  may  deem  necessary. 
Military  hospital  ships  shall  he 
distinguished  hy  heing  painted 
white  outside,  with  green  strake. 

ART.  Xlir.  The  hospital  ships 
which  are  equipped  at  the  ex 
pense  of  the  aid  societies,  recog- 
nized hy  the  governments  signing 
this  Convention,  and  which  are 
furnished  with  a  commission  ema- 
nating from  the  sovereign,  who 
shall  have  given  express  authority 
for  their  being  fitted  out.  and 
with  a  certificate  from  the  proper 
naval  authority  that  they  have 
heen  placed  under  his  control  dur- 
ing their  fitting  out  and  on  their 
final  departure,  and  that  they 
were  then  appropriated  solely  to 
the  purpose  of  their  mission,  shall 
he  considered  neutral,  as  Avell  as 
the  whole  of  their  staff.  They 
shall  be  recognized  and  protected 
by  the  belligerents. 

They  shall  make  themselves 
known  by  hoisting,  together  with 
their  national  flag,  the  white  flag 
with  a  red  cross.  The  distinctive 
mark  of  their  staff,  while  perform- 
ing their  duties,  shall  be  an  armlet 
of  the  same  colors.  The  outer 
painting  of  these  hospital  ships 
shall  be  white,  with  red  strake. 

These  ships  shall  bear  aid  and 
assistance  to  the  wounded  and 
wrecked  belligerents,  without  dis- 
tinction of  nationality. 

They  must  take  care  not  to  in. 
terfere  in  any  way  with  the  move- 
ments of  the  combatants.  Dur- 
ing and  after  the  battle  they  must 
do  their  duty  at  their  own  risk 
and  peril. 

The  belligerents  shall  have  the 
right  of  controlling  and  visiting 
them;  they  will  be  at  liberty  to 
refuse  their  assistance,  to  order 
them  to  depart,  and  to  detain 
them  if  the  exigencies  of  the  case 
require  such  a  step. 

The  wounded  and  wrecked 
picked  up  by  these  ships  cannot 
T)e  reclaimed  by  either  of  the  com- 
batants, and  they  will  be  required 
not  to  serve  during  the  continu- 
ance of  the  war. 


6gard  toute  verification  qu'ils  ju- 
gent  ne"cessaire. 

Lea   batiments    hopitaux    mili-    .Military    hos- 
taires  seront  distinguds  par  une  white,  etc. 
peinture  extdrieure  blanche  avec 
batterie  verte. 

ART.  XIII.  Les  navires  hospita-  Hospital  ships, 
lierMquipe-s  aux  frais  des  socif 
te"s  de  secours  reconnues  par  les  neutral. 
Gouvernements  signataires  de 
cette  Convention,  pourvus  de  com- 
mission e"man<5e  du  Souverain  qui 
aura  donne"  1'autorisation  expresse 
de  leur  armement,  et  d'un  docu- 
ment de  1'antorite"  maritime  com- 
pdtente,  stipulant  qu'ils  ont  6t6 
soumis  a  son  controle  pendant  leur 
armement  et  a  leur  depart  final, 
et  qu'ils  dtaient  alors  uniquemeut 
approprie"s  aubut  deleur  mission, 
serout  considers  comme  neutres 
ainsi  que  tout  leur  personnel.  Us 
seront  respect6s  et  protege's  par 
les  belligerants. 


,  etc., 
ity. 


Us  se  feront  reconnaitre  en  his-     Flag  si 
sant  avec  leur  pavilion  national,  of  neutra 
le  pavilion  blanc   a  croix  rouge. 
La  marque  distinctive  de  leur  per- 
sonnel dans  Pexercice  de  ses  fonc- 
tions  sera  un  brassard  aux  memes 
couleurs  ;  leur  peinture  exterieure 
sera  blanche  avec  batterie  rouge. 


Ces  navires  porteront  secours  et  Aid  and  assist- 
assistance  aux  blesses  et  aux  and^reckeTbe? 
naufrag^s  des  bellige'rants  sans  ligerents,  with- 

out distinction  of 
distinction  de  nationality.  nationality. 

Us  ne  devront  gener  en  aucune 
inaniere  les  mouvements  des  cora- 
battants.  Pendant  et  apres  le 
combat,  ils  agiront  a  leurs  risques 
et  p6rils. 

Les  bellige'rants  auront  sur  enx     Eights  of  bel- 
le  droit  de  controle  et  de  visite;^™^^ 
ils  pourront  refuser  leur  concours,  sels,  etc. 
leur  enjoindre  de  s'eloigner  et  les 
de"tenir  si  la  gravite"  des   circon- 
stances  1'exigeait. 

Les    blesses    et    les    naufrage's    Wounded  and 
recueillis  par  ces  navires  ne  pour-  ™<*ce 
ront  etre  re'clame's  par  aucnn  des  he  reclaimed. 
combattants,  etil  leur  sera  impose" 
de  ne  pas  servir  pendant  la  dure"e 
de  la  guerre. 


774 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


Right  of  bellig 


ART.  XIV.  In  naval  wars   any 
presumption  that,  either 
etc.  belligerent    takes    advantage    of 

the  benefits  of  neutrality,  with 
any  other  view  than  the  interest 
of  the  sick  and  wounded,  gives  to 
the  other  belligerent,  until  proof 
to  the  contrary,  the  right  of  sus- 
pending the  Convention,  as  re- 
gards such  belligerent. 
Notice  of  sus-  Should  this  presumption  be- 

ventioS   etcC°to  come  a  certainty>  notice  may  be 
be  given.  given  to  such  belligerent  that  the 

Convention  is  suspended  with  re- 
gard to  him  during  the  whole  con- 
tinuance of  the  war. 
Act   embodied     ART.  XV.  The  present  Act  shall 


copyn 

ited  in  archives  copy,  which  shall  be  deposited  in 


era,  etc. 


Seals  of  com- 


~  the  Archives  of  the  Swiss  Confed- 
eration. 

Authentic  copy  An  authentic  copy  of  this  Act 
sha11  be  delivered,  with  an  invi- 
tation  to  adhere  to  it,  to  each  of 
the  signatory  Powers  of  the  Con- 
vention of  the  22d  of  August, 
1864,  as  well  as  to  those  that  have 
successively  acceded  to  it. 

In  faith  whereof,  the  under- 
signed commissaries  have  drawn 
up  the  present  project  of  addi- 
tional articles  and  have  apposed 
thereunto  the  seals  of  their  arms. 
[Done  at  Geneva,  the  twentieth 
day  of  the  month  of  October,  of  the 
year  one  thousand  eight  hundred  and 
sixty  -eight.']  l 

VON  RCEDER. 
F.  LCEFFLER. 
K5HLER. 

DR.  MUNDY. 

STEINER. 

DR.  DOMPIERRE. 

VlSSCHERS. 

J.  B.  G.  GALIFFE. 

A.  COUPVENT  DBS   BOIS. 

H.  DE  PREVAL. 

JOHN  SAVILLE  LUMLEY. 

H.  R.  YELVERTON. 

D.  FELICE  BAROFFIO. 

PAOLO  COTTRAU. 

H.  A.  VAN  KARNEBEEK. 

WESTENBERG. 

F.  N.  STAAFF. 

G.  H.  DUFOUR. 

G.    MOYNIER. 

DR.  S.  LEHMANN. 

HUSNY. 

DR.  C.  HAHN. 

DR.  FICHTE. 


ART.  XIV.  Dans  les  guerres 
maritimes,  toute  forte  pre"somp- 
tion  que  1'un  des  belligdrants 
profite  du  be"ne"fice  de  la  neutrality 
dans  un  autre  intdret  que  celui 
des  blesses  et  des  malades,  permet 
a  1'autre  bellige~rant,  jusqn'a 
preuve  du  contraire,  de  suspendre 
la  Convention  a  son  6gard. 

Si  cette  pre"somption  devient 
une  certitude,  la  Convention  peut 
meme  lui  etre  de"nonce"e  pour  toute 
la  dure~e  de  la  guerre. 


ART.  XV.  Le  present  acte  sera 
dresse"  en  un  seul  exemplaire  ori- 
ginal qui  sera  de"pose"  aux  archives 
de  la  Confederation  suisse. 

Une  copie  authentique  de  cet 
acte  sera  delivre'e,  avec  Tinvita- 
tion  d'y  adherer,  a  chacune  des 
Puissances  signataires  de  la  Con- 
vention du  22  aout  1864,  ainsi  qu'a 
celles  qui  y  ont  successivement 
acc6de". 

EM  foi  de  quoi  les  Commissaires 
soussigne"s  ont  dresse"  le  present 
Projet  d'articles  additionnels  et  y 
ont  appose"  le  cachet  de  leurs 
armes. 

Fait  a  Geneve  le  vingtieme  jour 
du  mois  d'octobre  de  1'an  mil  huit 
cent  soixante-huit.1 

VON  RCEDER. 

F.  LCEFFLER. 

KOHLER. 

DR.  MUNDY. 

STEINER. 

DR.  DOMPIERRE. 

VlSSCHERS. 

J.  B.  G.  GALIFFE. 

A.  COUPVENT  DES  BOIS. 

H.  DE  PREVAL. 

JOHN  SAVILLE  LUMLEY. 

H.  R.  YELVERTON. 

D.  FELICE  BAROFFIO. 

PAOLO  COTTRAU. 

H.  A.  VAN  KARNEBEEK. 

WESTENBERG. 

F.  N.  STAAFF. 

G.  H.  DUFOUR. 
G.  MOYNIER. 
DR.  S.  LEHMANN. 
HUSNY. 

DR.  C.  HAHN. 
DR.  FICHTE. 


1  The  proclamation  of  the  President  of  the  United  States  promulgating  the  original 
treaty  and  the  articles  additional  thereto  bears  date  July  26,  1882  (22  Stat.  L.,  126). 


THE   MILITARY  LAWS   OF   THE   UNITED   STATES. 


775 


AGREEMENT1 

BETWEEN  RICHARD  OLNEY,  SECRETARY  OF  STATE  OF  THE 
UNITED  STATES  OF  AMERICA,  AND  MATIAS  ROMERO, 
ENVOY  EXTRAORDINARY  AND  MINISTER  PLENIPOTEN- 
TIARY OF  THE  UNITED  MEXICAN  STATES. 


Signed  at  Washington,  June  4,  1896. 


Agreement  entered  in  to  in 
behalf  of  their  respective 
Governments  by  Eichard 
Olney,  Secretary  of  State 
of  the  United  States  of 
America,  and  Matias  Rom  ero, 
Envoy  Extraordinary  and 
Minister  Plenipotentiary  of 
the  United  Mexican  States, 
providing  for  the  reciprocal 
crossing  of  the  international 
boundary  line  by  the  troops 
of  their  respective  govern- 
ments, in  pursuit  of  Kid's 
band  of  hostile  Indians,  on 
the  conditions  hereinafter 
stated. 

ARTICLE  I. 

It  is  agreed  that  the  regu- 
lar federal  troops  of  the  two 
Republics  may  reciprocally 
cross  the  boundary  line  of 
the  two  countries  when  they 
are  in  close  pursuit  of  Kid's 
band  of  hostile  Indians  on 
the  conditions  stated  in  the 
following  articles. 


Conveuio  celebrado  en 
nombre  de  sus  respectivos 
Gobiernos  por  el  Senor 
Richard  Olney,  Secretario  de 
Estado  delos  Estados  Unidos 
de  America,  y  el  Senor  Don 
Matias  Romero,  Enviado 
Extraordinario  y  Ministro 
Plenipotenciario  de  los  Es- 
tados Unidos  Mexicanos,  au- 
torizando  el  paso  reciproco 
provisional  de  la  linea  divi- 
soria  internacional,  de  tropas 
desus  respectivos  Gobiernos, 
en  persecution  de  la  banda 
de  Indios  sublevados  de  Kid, 
bajo  las  restricciones  que  en 
seguida  se  expresan : 

ARTICULO  I. 

Se  conviene  en  que  las 
tropas  federales  regulares  de 
lat  dos  Republicas  pasen 
reciprocamente  la  linea  divi- 
soria  entre  los  dos  paises 
cuando  vayan  persiguiendo 
de  cerca  la  banda  de  Indios 
sublevados  de  Kid  con  arre- 
glo  a  las  condiciones  que  se 
expresan  en  los  articulos 
siguientes : 


1  Published  in  General  Orders  24,  Adjutant-General's  Office,  1896.    For  a  similar 
agreement,  see  volume  22,  Statutes  at  Large,  page  126. 


776 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 


ARTICLE  II. 

It  is  understood  for  the 
purpose  of  this  agreement, 
that  no  Indian  scout  of  the 
Government  of  the  United 
States  of  America  shall  be 
allowed  to  cross  the  boundary 
line,  unless  he  goes  as  a  guide 
and  trailer,  unarmed  and 
with  the  proviso  that,  in  no 
case,  more  than  two  scouts 
shall  attend  each  Company 
or  detachment. 


ARTICLE  III. 

The  reciprocal  crossing 
agreed  upon  in  Article  I  shall 
only  take  place  in  the  unin- 
habited or  desert  parts  of 
said  boundary  line.  For  the 
purposes  of  this  agreement 
the  uninhabited  or  desert 
parts  are  defined  to  be  all 
points  that  are  at  least  ten 
kilometers  distant  from  any 
encampment  or  town  of  either 
country. 

ARTICLE  IV. 

No  crossing  of  troops  of 
either  country  shall  take 
place  from  Capitan  Leal,  a 
town  on  the  Mexican  side  of 
the  Rio  Grande,  eighty -four 
kilometers  (52  English  miles) 
above  Piedras  Negras,  to  the 
mouth  of  the  Rio  Grande. 


ARTICLE  Y. 


ARTICULO  II. 

Para  los  efectos  de  este 
convenio  queda  entendido 
que  no  se  permitira  a  ningun 
explorador  indio  (scout)  del 
Gobierno  de  los  Estados 
Unidos  de  America  cruzar  la 
linea  divisoria,  a  no  ser  que 
vaya  sin  arnias  y  como  guia 
y  practice  en  las  huellas.  y 
en  el  concepto  de  que  en 
ningun  caso  acompauaran 
mas  de  dos  indios  explora- 
dores  (scouts)  a  cada  com- 
pania  6  cada  destacaineuto. 

ARTICULO  III. 

El  paso  reciproco  con- 
venido  en  el  articulo  I  no 
podra  hacerse  sino  por  la 
parte  despoblada  y  desierta 
de  dicha  linea  divisoria. 
Para  los  efectos  de  este  con- 
venio se  entienden  por  partes 
despobladas  6  desiertas  todos 
aquellos  puntos  distantespor 
lo  menos  diez  kilometros  de 
cualquier  campamento  6 
poblacion  de  ambos  paises. 

ARTICULO  IY. 

El  paso  de  tropas  de  uno 
u  otro  pais  no  podra  tener 
lugar  desde  Capitan  Leal, 
poblacion  en  el  lado  mexi- 
cano  del  Rio  Bravo  a  ochenta 
y  cuatro  kilometros  (52  milas 
inglesas)rioarribade  Piedras 
Negras,  hasta  la  embocadura 
del  Eio  Bravo  del  Korte. 

ARTICULO  Y. 


The  Commander  of  troops  El  Jefe  de  las  fuerzas  que 
crossing  the  frontier  in  pur-  pasen  la  frontera  en  persecu- 
suit  of  Indians,  shall,  at  the  cioii  de  Indios,  debera,  al 


THIS   MILITARY   LAWS   OF   THE    UNITED    STATES. 


777 


time  of  crossing,  or  before  if 
possible,  give  notice  of  his 
march  to  the  nearest  military 
commander,  or  civil  author- 
ity, of  the  country  whose 
territory  he  is  about  to  enter. 

ARTICLE  VI. 

The  pursuing  force  shall 
retire  to  its  own  territory  as 
soon  as  it  shall  have  chastised 
Kid's  band  of  hostile  Indians? 
or  have  lost  its  trail;  but  if, 
during  the  pursuit  of  that 
band,  it  shall  meet  with  other 
hostile  Indians,  it  may  chas- 
tise them  as  if  those  first 
named  were  concerned.  In 
no  case  shall  the  forces  of  the 
two  countries,  respectively, 
establish  themselves  or  re- 
main in  the  foreign  territory 
for  any  time  longer  than  is 
necessary  to  enable  them  to 
pursue  the  band  whose  trail 
they  are  following. 

The  temporary  loss  of  the 
trail,  owing  to  rain  or  any 
other  accident,  shall  not  be 
deemed  sufficient  cause  for 
abandoning  the  pursuit  or 
for  withdrawing  the  pur- 
suing force,  when  there  is 
a  reasonable  prospect  of 
soon  finding  the  trail  again 
by  means  of  a  continued 
movement. 

ARTICLE  VII. 

Any  abuses  that  may  be 
committed  by  the  forces 
crossing  into  the  territory  of 
the  other  nation,  shall  be 
punished  by  the  Government 
to  which  such  forces  belong, 
according  to  the  gravity  of 


crusar  la  linea  divisoria  6 
antes  si  fuere  posible,  dar 
aviso  de  su  marcha  al  Jefe 
militar  6  a  la  autoridad  civil 
mas  proxima  del  pais  a  cuyo 
territorio  va  a  entrar. 

ARTICULO  VI. 

La  fuerza  perseguidora  se 
retirara  a  su  pais  tan  luego 
como  haya  batido  a  la  banda 
de  indios  sublevados  de  Kid 
6  perdido  su  huella;  pero  si 
durante  la  persecucion  de 
esta  banda  encontrare  otros 
indios  sublevados,  podra 
batirlos  como  si  se  tratara  de 
aquellos.  En  ningun  caso 
podran  las  fuerzas  de  los  dos 
paises,  respectivamente,esta- 
blecerse  en  territorio  extran- 
jero,ni  permanecer  en  el  mas 
tiernpo  que  es  necesario  para 
hacer  la  persecucion  de  la 
partida  cuya  huella  sigan. 

La  interruption  temporal 
de  la  huella,  por  la  lluvia 
u  otro  accidente,  no  debe 
ser  motivo  para  abaridonar 
la  persecucion  ni  para  reti- 
rar  la  fuerza  perseguidora, 
cuando  haya  una  perspectiva 
racional  de  volver  a  encon- 
trar  pronto  esa  huella  por 
medio  de  un  movimiento  con- 
tinuado. 

ARTICULO  VII. 

Los  abusos  que  cometan 
las  fuerzas  que  pasen  al  te- 
rritorio de  la  otra  nation, 
ser  an  castigados,  segun  la 
gravedad  de  la  ofensa  y  con 
arreglo  a  sus  leyes,  por  el 
Gobierno  de  quien  depeudan, 


778      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 


the  offence  and  in  conformity 
with  its  laws,  as  if  the  abuses 
had  been  committed  in  its 
own  territory,  the  said  Gov- 
ernment being  further  under 
obligation  to  withdraw  the 
guilty  parties  from  the  fron- 
tier. 

ARTICLE  VIII. 

In  the  case  of  offences  com- 
mitted by  the  inhabitants  of 
one  country  against  the  force 
of  the  other  that  may  be 
within  the  limits  of  the  for- 
mer, the  Government  of  said 
country  shall  only  be  respon- 
sible to  the  Government  of 
the  other  for  denial  of  justice 
in  the  punishment  of  the 
guilty  parties. 

ARTICLE  IX. 

This  pro  visional  agreement 
shall  remain  in  force  until 
Kid's  band  of  hostile  Indians 
shall  be  wholly  exterminated 
or  rendered  obedient  to  one 
of  the  two  Governments. 


ARTICLE  X. 

The  Senate  of  the  United 
Mexican  States  having  au- 
thorized the  President  to 
conclude  this  agreement,  it 
shall  take  effect  immediately. 

In  testimony  whereof  we 
have  signed  this  agreement 
this  4th  day  of  June,  1896. 


como  si  fuesen  cometidos  en 
su  propio  territorio,  que- 
dando  siempre  obligado  el 
mismo  Gobierno  a  retirar  de 
la  frontera  £  los  culpables. 


ARTICULO  VIII. 

En  los  casos  de  delitos  co- 
metidos por  los  habitantes  de 
un  pais  contra  la  fuerza  del 
otro,  que  est6  dentro  de  los 
limites  del  primero,  el  Go- 
bierno de  este  pais  solo  es 
responsable  para  con  el  otro 
Gobierno  por  denegacion  de 
justicia  en  el  castigo  de  los 
culpables. 


ARTICULO  IX. 

Este  Convenio  provisional 
permanecer&  en  vigor  mien- 
tras  la  banda  de  indios  sub- 
levados  de  Kid  no  fuere  com- 
pletamente  exterminada  6 
reducida  a  la  obediencia  de 
uno  de  los  dos  Gobiernos. 

ARTfCULO  X. 

Habiendo  el  Senado  de  los 
Estados  Unidos  Mexicanos 
autorizado  al  Presidente 
para  celebrar  este  Convenio, 
comenzara  a  tener  efecto 
desde  esta  fecha. 

En  testimonio  de  lo  cual 
hemos  firmado  este  Convenio 
el  4  de  Junio,  de  1896. 

EICHARD  OLNEY. 
M.  EOMERO. 


INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES  OF  THE  UNITED 
STATES  IN  THE  FIELD. 


WAR  DEPARTMENT. 
GENERAL  ORDERS,  )  ADJUTANT- GENERAL'S  OFFICE, 

Washington,  April  24,  1863. 

The  following  u  Instructions  for  the  government  of  armies  of  the 
United  States  in  the  field,"  prepared  by  Francis  Lieber,  LL.  D.,  and 
revised  by  a  board  of  officers,  of  which  Maj.  Gen.  E.  A.  Hitchcock  is 
president,  having  been  approved  by  the  President  of  the  United  States, 
he  commands  that  they  be  published  for  the  information  of  all  concerned. 
By  order  of  the  Secretary  of  War : 

E.  D.  TOWNSEND, 
Assistant  Adjutant-  General. 


SECTION  I. 

Martial  law — Military  jurisdiction — Military  necessity — Retaliation. 

1.  A  place,  district,  or  country  occupied  by  an  enemy  stands,  in  con- 
sequence of  the  occupation,  under  the  martial  law  of  the  invading  or 
occupying  army,  whether  any  proclamation  declaring  martial  law  or 
any  public  warning  to  the  inhabitants  has  been  issued  or  not.    Martial 
law  is  the  immediate  and  direct  effect  and  consequence  of  occupation 
or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  martial  law. 

2.  Martial  law  does  not  cease  during  the  hostile  occupation,  except 
by  special  proclamation  ordered  by  the  commander-in-chief,  or  by  spe- 
cial mention  in  the  treaty  of  peace  concluding  the  war,  when  the  occu- 
pation of  a  place  or  territory  continues  beyond  the  conclusion  of  peace 
as  one  of  the  conditions  of  the  same. 

3.  Martial  law  in  a  hostile  country  consists  in  the  suspension,  by  the 
occupying  military  authority,  of  the  criminal  and  civil  law,  and  of  the 
domestic  administration  and  government  in  the  occupied  place  or  terri- 
tory, and  in  the  substitution  of  military  rule  and  force  for  the  same,  as 
well  as  in  the  dictation  of  general  laws,  as  far  as  military  necessity 
requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administration 
of  all  civil  and  penal  law  shall  continue  either  wholly  or  in  part,  as  in 
times  of  peace,  unless  otherwise  ordered  by  the  military  authority. 

779 


780      THE  MILITARY  LAWS  OF  THE  UNITED  STATES. 

4.  Martial  law  is  simple  military  authority  exercised  in  accordance 
with  the  laws  aod  usages  of  war.    Military  oppression  is  not  martial 
law;  it  is  the  abuse  of  the  power  which  the  law  confers.    As  martial 
law  is  executed  by  military  force,  it  is  incumbent  upon  those  who 
administer  it  to  be  strictly  guided  by  the  principles  of  justice,  honor, 
arid  humanity — virtues  adorning  a  soldier  even  more  than  other  men, 
for  the  very  reason  that  he  possesses  the  power  of  his  arms  against  the 
unarmed. 

5.  Martial  law  should  be  less  stringent  in  places  and  countries  fully 
occupied  and  fairly  conquered.    Much  greater  severity  may  be  exercised 
in  places  or  regions  where  actual  hostilities  exist,  or  are  expected  and 
must  be  prepared  for.    Its  most  complete  sway  is  allowed — even  in  the 
commander's  own  country — when  face  to  face  with  the  enemy,  because 
of  the  absolute  necessities  of  the  case,  and  of  the  paramount  duty  to 
defend  the  country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 

6.  All  civil  and  penal  law  shall  continue  to  take  its  usual  course  in  the 
enemy's  places  and  territories  under  martial  law,  unless  interrupted  or 
stopped  by  order  of  the  occupying  military  power;  but  all  the  functions 
of  the  hostile  government — legislative,  executive,  or  administrative — 
whether  of  a  general,  provincial,  or  local  character,  cease  under  martial 
law,  or  continue  only  with  the  sanction,  or,  if  deemed  necessary,  the 
participation,  of  the  occupier  or  invader. 

7.  Martial  law  extends  to  property  and  to  persons,  whether  they  are 
subjects  of  the  enemy  or  aliens  to  that  Government. 

8.  Consuls,  among  American  and  European  nations,  are  not  diplo- 
matic agents.    Nevertheless,  their  offices  and  persons  will  be  subjected 
to  martial  law  in  cases  of  urgent  necessity  only;  their  property  and 
business  are  not  exempted.    Any  delinquency  they  commit  against  the 
established  military  rule  may  be  punished  as  in  the  case  of  any  other 
inhabitant,  and  such  punishment  furnishes  no  reasonable  ground  for 
international  complaint. 

9.  The  functions  of   ambassadors,   ministers,   or  other  diplomatic 
agents  accredited  by  neutral  powers  to  the  hostile  government  cease, 
so  far  as  regards  the  displaced  government;  but  the  conquering  or 
occupying  power  usually  recognizes  them  as  temporarily  accredited  to 
itself. 

10.  Martial  law  affects  chiefly  the  police  and  collection  of  public 
revenue  and  taxes,  whether  imposed  by  the  expelled  government  or 
by  the  invader,  and  refers  mainly  to  the  support  and  efficiency  of  the 
army,  its  safety,  and  the  safety  of  its  operations. 

11.  The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad  faith 
concerning  engagements  concluded  with  the  enemy  during  the  war,  but 
also  the  breaking  of  stipulations  solemnly  contracted  by  the  belligerents 
in  time  of  peace,  and  avowedly  intended  to  remain  in  force  in  case  of 
war  between  the  contracting  powers. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  781 

It  disclaims  all  extortions  and  other  transactions  for  individual  gain; 
all  acts  of  private  revenge,  or  connivance  at  such  acts. 

(Menses  to  the  contrary  shall  be  severely  punished,  and  especially 
so  if  committed  by  officers. 

12.  Whenever  feasible,  martial  law  is  carried  out  in  cases  of  indi- 
vidual offenders  by  military  courts ;  but  sentences  of  death  shall  be 
executed  only  with  the  approval  of  the  chief  executive,  provided  the 
urgency  of  the  case  does  not  require  a  speedier  execution,  and  then 
only  with  the  approval  of  the  chief  commander. 

13.  Military  jurisdiction  is  of  two  kinds:  First,  that  which  is  con- 
ferred and  defined  by  statute ;  second,  that  which  is  derived  from  the 
common  law  of  war.    Military  offenses  under  the  statute  law  must  be 
tried  in  the  manner  therein  directed ;  but  military  offenses  which  do 
not  come  within  the  statute  must  be  tried  and  punished  under  the 
common  law  of  war.    The  character  of  the  courts  which  exercise  these 
jurisdictions  depends  upon  the  local  laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  Eules  and  Articles 
of  War,  or  the  jurisdiction  conferred  by  statute  or  courts-martial,  are 
tried  by  military  commissions. 

14.  Military  necessity,  as  understood  by  modern  civilized  nations, 
consists  in  the  necessity  of  those  measures  which  are  indispensable  for 
securing  the  ends  of  the  war,  and  which  are  lawful  according  to  the 
modern  law  and  usages  of  war. 

15.  Military  necessity  admits  of  all  direct  destruction  of  life  or  limb 
of  armed  enemies,  and  of  other  persons  whose  destruction  is  incident- 
ally unavoidable  in  the  armed  contests  of  the  war ;  it  allows  of  the  cap- 
turing of  every  armed  enemy  and  every  enemy  of  importance  to  the 
hostile  government  or  of  peculiar  danger  to  the  captor;  it  allows  of 
all  destruction  of  property  and  obstruction  of  the  ways  and  channels 
of  traffic,  travel,  or  communication,  and  of  all  withholding  of  suste- 
nance or  means  of  life  from  the  enemy;  of  the  appropriation  of  whatever 
an  enemy's  country  affords  necessary  for  the  subsistence  and  safety  of 
the  army,  and  of  such  deception  as  does  not  involve  the  breaking  of 
good  faith,  either  positively  pledged,  regarding  agreements  entered  into 
during  the  war,  or  supposed  by»the  modern  law  of  war  to  exist.    Men 
who  take  up  arms  against  one  another  in  public  war  do  not  cease  on 
this  account  to  be  moral  beings,  responsible  to  one  another  and  to  God. 

16.  Military  necessity  does  not  admit  of  cruelty — that  is,  the  inflic- 
tion of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of  maim- 
ing or  wounding  except  in  fight,  nor  of  torture  to  extort  confessions. 
It  does  not  admit  of  the  use  of  poison  in  any  way,  nor  of  the  wanton 
devastation  of  a  district.    It  admits  of  deception,  but  disclaims  acts  ot 
perfidy;  and,  in  general,  military  necessity  does  not  include  any  act 
of  hostility  which  makes  the  return  to  peace  unnecessarily  difficult. 

17.  War  is  not  carried  on  by  arms  alone.    It  is  lawful  to  starve  the 


782  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

hostile  belligerent,  armed  or  unarmed,  so  that  it  leads  to  the  speedier 
subjection  of  the  enemy. 

18.  When  a  commander  of  a  besieged  place  expels  the  noncombat- 
ants,  in  order  to  lessen  the  number  of  those  who  consume  his  stock  of 
provisions,  it  is  lawful,  though  an  extreme  measure,  to  drive  them  back, 
so  as  to  hasten  on  the  surrender. 

19.  Commanders,  whenever  admissible,  inform  the  enemy  of  their 
intention  to  bombard  a  place,  so  that  the  noncombatants,  and  especially 
the  women  and  children,  may  be  removed  before  the  bombardment 
commences.    But  it  is  no  infraction  of  the  common  law  of  war  to  omit 
thus  to  inform  the  enemy.    Surprise  may  be  a  necessity. 

20.  Public  war  is  a  state  of  armed  hostility  between  sovereign  nations 
or  governments.    It  is  a  law  and  requisite  of  civilized  existence  that 
men  live  in  political,  continuous  societies,  forming  organized  units, 
called  states  or  nations,  whose  constituents  bear,  enjoy  and  suffer, 
advance  and  retrograde  together  in  peace  and  in  war. 

21.  The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as 
one  of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is 
subjected  to  the  hardships  of  the  war. 

22.  Nevertheless,  as  civilization  has  advanced  during  the  last  cen- 
turies, so  has  likewise  steadily  advanced,  especially  in  war  on  laud,  the 
distinction  between  the  private  individual  belonging  to  a  hostile  coun- 
try and  the  hostile  country  itself,  with  its  men  in  arms.     The  principle 
has  been  more  and  more  acknowledged  that  the  unarmed  citizen  is  to 
be  spared  in  person,  property,  and  honor  as  much  as  the  exigencies  of 
war  will  admit. 

23.  Private  citizens  are  no  longer  murdered,  enslaved,  or  carried  off 
to  distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed 
in  his  private  relations  as  the  commander  of  the  hostile  troops  can 
afford  to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24.  The  almost  universal  rule  in  remote  times  was,  and  continues  to 
be  with  barbarous  armies,  that  the  private  individual  of  the  hostile 
country  is  destined  to  suffer  every  privation  of  liberty  and  protection 
and  every  disruption  of  family  ties.    Protection  was,  and  still  is  with 
uncivilized  people,  the  exception. 

25.  In  modern  regular  wars  of  the  Europeans,  and  their  descendants 
in  other  portions  of  the  globe,  protection  of  the  inoffensive  citizen  of 
the  hostile  country  is  the  rule;  privation  and  disturbance  of  private 
relations  are  the  exceptions. 

26.  Commanding  generals  may  cause  the  magistrate  and  civil  officers 
of  the  hostile  country  to  take  the  oath  of  temporary  allegiance  or  an 
oath  of  fidelity  to  their  own  victorious  government  or  rulers,  and  they 
may  expel  every  one  who  declines  to  do  so.    But  whether  they  do  so 
or  not,  the  people  and  their  civil  officers  owe  strict  obedience  to  them 
as  long  as  they  hold  sway  over  the  district  or  country,  at  the  peril  of 
their  lives. 


THE   MILITARY    LAWS   OF   THE    UNITED    STATES.  783 

27.  The  law  of  war  can  no  more  wholly  dispense  with  retaliation  than 
can  the  law  of  nations,  of  which  it  is  a  branch.    Yet  civilized  nations 
acknowledge  retaliation  as  the  sternest  feature  of  war.     A  reckless 
enemy  often  leaves  to  his  opponent  no  other  means  of  securing  himself 
against  the  repetition  of  barbarous  outrage. 

28.  Eetaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of 
mere  revenge,  but  only  as  a  means  of  protective  retribution,  and,  more- 
over, cautiously  and  unavoidably;  that  is  to  say,  retaliation  shall  only 
be  resorted  to  after  careful  inquiry  into  the  real  occurrence  and  the 
character  of  the  misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retaliation  removes  the  belligerents  further 
and  further  from  the  mitigating  rules  of  regular  war,  and  by  rapid  steps 
leads  them  nearer  to  the  internecine  wars  of  savages. 

29.  Modern  times  are  distinguished  from  earlier  ages  by  the  exist- 
ence, at  one  and  the  same  time,  of  many  nations  and  great  governments 
related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition ;  war  is  the  exception.  The  ultimate 
object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30.  Ever  since  the  formation  and  coexistence  of  modern  nations,  and 
ever  since  wars  have  become  great  national  wars,  war  has  come  to  be 
acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain  great  ends 
of  state,  or  to  consist  in  defense  against  wrong ;  and  no  conventional 
restriction  of  the  modes  adopted  to  injure  the  enemy  is  any  longer 
admitted ;  but  the  law  of  war  imposes  many  limitations  and  restric- 
tions on  principles  of  justice,  faith,  and  honor. 

SECTION  II. 

Public  and  private  property  of  the  enemy — Protection  of  persons,  and  especially  of  women; 
of  religion,  the  arts  and  sciences — Punishment  of  crime  against  the  inhabitants  of  hos- 
tile countries. 

31.  A  victorious  army   appropriates   all  public  money,   seizes  all 
public  movable  property  until  further  direction  by  its  government,  and 
sequesters  for  its  own  benefit  or  that  of  its  government  all  the  reve- 
nues of  real  property  belonging  to  the  hostile  government  or  nation. 
The  title  to  such  real  property  remains  in  abeyance  during  military 
occupation  and  until  the  conquest  is  made  complete. 

32.  A  victorious  army,  by  the  martial  power  inherent  in  the  same, 
may  suspend,  change,  or  abolish,  as  far  as  the  martial  power  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  exist- 
ing laws  of  the  invaded  country,  from  one  citizen,  subject,  or  native  of 
the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty  of 
peace  to  settle  the  permanency  of  this  change. 

33.  It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  to 


784  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

be  a  serious  breach  of  the  law  of  war — to  force  the  subjects  of  the 
enemy  into  the  service  of  the  victorious  government,  except  the  latter 
should  proclaim,  after  a  fair  and  complete  conquest  of  the  hostile 
country  or  district,  that  it  is  resolved  to  keep  the  country,  district,  or 
place  permanently  as  its  own  and  make  it  a  portion  of  its  own  country. 

34.  As  a  general  rule,  the  property  belonging  to  churches,  to  hos- 
pitals, or  other  establishments  of  an  exclusively  charitable  character, 
to  establishments  of  education,  or  foundations  for  the  promotion  of 
knowledge,  whether  public  schools,  universities,  academies  of  learning, 
or  observatories,  museums  of  the  fine  arts,  or  of  a  scientific  character — 
such  property  is  not  to  be  considered  public  property  in  the  sense  of 
paragraph  31,  but  it  may  be  taxed  or  used  when  the  public  service  may 
require  it. 

35.  Classical  works  of  art,  libraries,  scientific  collections,  or  precious 
instruments,  such  as  astronomical  telescopes,  as  well  as  hospitals,  must 
be  secured  against  all  avoidable  injury,  even  when  they  are  contained 
in  fortified  places  whilst  besieged  or  bombarded. 

36.  If  such  works  of  art,  libraries,  collections,  or  instruments  belong- 
ing to  a  hostile  nation  or  government  can  be  removed  without  injury, 
the  ruler  of  the  conquering  state  or  nation  may  order  them  to  be  seized 
and  removed  for  the  benefit  of  the  said  nation.     The  ultimate  owner- 
ship is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  shall  they  be  sold  or  given  away  if  captured  by  the  armies 
of  the  United  States,  nor  shall  they  ever  be  privately  appropriated  or 
wantonly  destroyed  or  injured. 

37.  The  United  States  acknowledge  and  protect,  in  hostile  countries 
occupied  by  them,  religion  and  morality,  strictly  private  property,  the 
persons  of  the  inhabitants,  especially  those  of  women,  and  the  sacred- 
ness  of  domestic  relations.     Offenses  to  the  contrary  shall  be  rigorously 
punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader  to 
tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet  soldiers, 
or  to  appropriate  property,  especially  houses,  lands,  boats  or  ships,  and 
churches,  for  temporary  and  military  uses. 

38.  Private  property,  unless  forfeited  by  crimes  or  by  oifenses  of  the 
owner,  can  be  seized  only  by  way  of  military  necessity  for  the  support 
or  other  benefit  of  the  army  or  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  receipts 
to  be  given,  which  may  serve  the  spoliated  owner  to  obtain  indemnity. 

39.  The  salaries  of  civil  officers  of  the  hostile  government  who 
remain  in  the  invaded  territory,  and  continue  the  work  of  their  office, 
and  can  continue  it  according  to  the  circumstances  arising  out  of  the 
war — such  as  judges,  administrative  or  police  officers,  officers  of  city 
or  communal  governments — are  paid  from  the  public  revenue  of  the 
invaded  territory  until  the  military  government  has  reason  wholly  or 
partially  to  discontinue  it.    Salaries  or  incomes  connected  with  purely 
honorary  titles  are  always  stopped. 


THE    MILITARY   LAWS    OF   THE    UNITED    STATES.  785 

40.  There  exists  no  law  or  body  of  authoritative  rules  of  action 
between  hostile  armies,  except  that  branch  of  the  law  of  nature  and 
nations  which  is  called  the  law  and  usages  of  war  on  land. 

41.  All  municipal  law  of  one  ground  on  which  the  armies  stand,  or  of 
the  countries  to  which  they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 

42.  Slavery,  complicating  and  confounding  the  ideas  of  property 
(that  is,  of  a  thing)  and  of  personality  (that  is,  of  humanity),  exists  accord- 
ing to  municipal  or  local  law  only.    The  law  of  nature  and  nations  has 
never  acknowledged  it.     The  digest  of  the  Roman  law  enacts  the  early 
dictum  of  the  pagan  jurist,  that,  "so  far  as  the  law  of  nature  is  con- 
cerned, all  men  are  equal."    Fugitives  escaping  from  a  country  in  which 
they  were  slaves,  villains,  or  serfs,  into  another  country,  have,  for  cen- 
turies past,  been  held  free  and  acknowledged  free  by  judicial  decisions 
of  European  countries,  even  though  the  municipal  law  of  the  country 
in  which  the  slave  had  taken  refuge  acknowledged  slavery  within  its 
own  dominions. 

43.  Therefore,  in  a  war  between  the  United  States  and  a  belligerent 
which  admits  of  slavery,  if  a  person  held  in  bondage  by  that  belligerent 
be  captured  by  or  come  as  a  fugitive  under  the  protection  of  the  mili- 
tary forces  of  the  United  States,  such  person  is  immediately  entitled 
to  the  rights  and  privileges  of  a  freeman.    To  return  such  person  into 
slavery  would  amount  to  enslaving  a  free  person,  and  neither  the  United 
States  nor  any  officer  under  their  authority  can  enslave  any  human 
being.    Moreover,  a  person  so  made  free  by  the  law  of  war  is  under  the 
shield  of  the  law  of  nations,  and  the  former  owner  or  state  can  have, 
by  the  law  of  post  liminy,  no  belligerent  lien  or  claim  of  service. 

44.  All  wanton  violence  committed  against  persons  in  the  invaded 
country,  all  destruction  of  property  not  commanded  by  the  authorized 
officer,  all  robbery,  all  pillage  or  sacking,  even  after  taking  a  place  by 
main  force,  all  rape,  wounding,  maiming,  or  killing  of  such  inhabitants, 
are  prohibited  under  the  penalty  of  death,  or  such  other  severe  punish- 
ment as  may  seem  adequate  for  the  gravity  of  the  offense. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be  law- 
fully killed  on  the  spot  by  such  superior. 

45.  All  captures  and  booty  belong,  according  to  the  modern  law  of 
war,  primarily  to  the  government  of  the  captor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed  under 
local  law. 

46.  Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their  posi- 
tion or  power  in  the  hostile  country  for  private,  gain,  not  even  for  com- 
mercial transactions  otherwise  legitimate.    Offenses  to  the  contrary 
committed  by  commissioned  officers  will  be  punished  with  cashiering  or 
such  other  punishment  as  the  nature  of  the  offense  may  require  5  if  by 
soldiers,  they  shall  be  punished  according  to  the  nature  of  the  offense. 

1919 50 


786  THE    MILITARY   LAWS    OF   THE   UNITED    STATES. 

47.  Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder, 
maiming,  assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery, 
and  rape,  if  committed  by  an  American  soldier  in  a  hostile  country 
against  its  inhabitants,  are  not  only  punishable  as  at  home,  but  in  all 
cases  in  which  death  is  not  inflicted  the  severer  punishment  shall  be 
preferred. 

SECTION  III. 

Deserters — Prisoners  of  war— Hostages — Booty  on  the  battle-field. 

48.  Deserters  from  the  American  Army,  having  entered  the  service 
of  the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the  United 
States,  whether  by  capture  or  being  delivered  up  to  the  American 
Army ;  and  if  a  deserter  from  the  enemy,  having  taken  service  in  the 
Army  of  the  United  States,  is  captured  by  the  enemy,  and  punished  by 
them  with  death  or  otherwise,  it  is  not  a  breach  against  the  law  and 
usages  of  war  requiring  redress  or  retaliation. 

49.  A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to  the 
hostile  army  for  active  aid,  who  has  fallen  into  the  hands  of  the  captor, 
either  fighting  or  wounded,  on  the  field  or  in  the  hospital,  by  individual 
surrender  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms ;  all  men  who  belong  to  the 
rising  en  masse  of  the  hostile  country;  all  those  who  are  attached  to  the 
army  for  its  efficiency  and  promote  directly  the  object  of  the  war,  except 
such  as  are  hereinafter  provided  for ;  all  disabled  men  or  officers  on  the 
field  or  elsewhere,  if  captured ;  all  enemies  who  have  thrown  away  their 
arms  and  ask  for  quarter,  are  prisoners  of  war,  and  as  such  exposed 
to  the  inconveniences  as  well  as  entitled  to  the  privileges  of  a  prisoner 
of  war. 

50.  Moreover,  citizens  who  accompany  an  army  for  whatever  purpose, 
such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors,  if 
captured,  may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  hostile  reigning  family,  male  or 
female,  the  chief,  and  chief  officers  of  the  hostile  government,  its  diplo- 
matic agents,  and  all  persons  who  are  of  particular  and  singular  use 
and  benefit  to  the  hostile  army  or  its  government,  are,  if  captured  on 
belligerent  ground,  and  if  unprovided  with  a  safe  conduct  granted  by 
the  captor's  government,  prisoners  of  war. 

51.  If  the  people  of  that  portion  of  an  invaded  country  which  is  not 
yet  occupied  by  the  enemy,  or  of  the  whole  country,  at  the  approach 
of  a  hostile  army,  rise,  under  a  duly  authorized  levy,  en  masse  to  resist 
the  invader,  they  are  now  treated  as  public  enemies,  and,  if  captured, 
are  prisoners  of  war. 

52.  No  belligerent  has  the  right  to  declare  that  he  will  treat  every 
captured  man  in  arms  of  a  levy  en  masse  as  a  brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  any  portion  of  the  same, 
already  occupied  by  an  army  rise  against  it,  they  are  violators  of  the 
laws  of  war,  and  are  not  entitled  to  their  protection. 


THE  MILITARY  LAWS  OF  THE  UNITED  STATES.      787 

53.  The  enemy's  chaplains,  officers  of  the  medical  staff,  apothecaries, 
hospital  nurses,  and  servants,  if  they  fall  into  the  hands  of  the  Ameri- 
can Army,  are  not  prisoners  of  war  unless  the  commander  has  reasons 
to  retain  them.     In  this  latter  case,  or  if,  at  their  own  desire,  they  are 
allowed  to  remain  with  their  captured  companions,  they  are  treated  as 
prisoners  of  war,  and  may  be  exchanged  if  the  commander  sees  fit. 

54.  A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfillment  of 
an  agreement  concluded  between  belligerents  during  the  war,  or  in 
consequence  of  a  war.     Hostages  are  rare  in  the  present  age. 

55.  If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war, 
according  to  rank  and  condition,  as  circumstances  may  admit. 

56.  A  prisoner  of  war  is  subject  to  no  punishment  for  being  a  public 
enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  intentional  inflic- 
tion of  any  suffering,  or  disgrace,  by  cruel  imprisonment,  want  of  food, 
by  mutilation,  death,  or  any  other  barbarity. 

57.  So  soon  as  a  man  is  armed  by  a  sovereign  government  and  takes 
the  soldier's  oath  of  fidelity,  he  is  a  belligerent ;  his  killing,  wounding, 
or  other  warlike  acts  are  no  individual  crimes  or  offenses.    No  belliger- 
ent has  a  right  to  declare  that  enemies  of  a  certain  class,  color,  or  con- 
dition, when  properly  organized  as  soldiers,  will  not  be  treated  by  him 
as  public  enemies. 

58.  The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an 
enemy  of  the  United  States  should  enslave  and  sell  any  captured  per- 
sons of  their  Army  it  would  be  a  case  for  the  severest  retaliation,  if  not 
redressed  upon  complaint. 

The  United  States  can  not  retaliate  by  enslavement ;  therefore  death 
must  be  the  retaliation  for  this  crime  against  the  law  of  nations. 

59.  A  prisoner  of  war  remains  answerable  for  his  crimes  committed 
against  the  captor's  army  or  people,  committed  before  he  was  captured, 
and  for  which  he  has  not  been  punished  by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory  measures. 

60.  It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred  and 
revenge,  to  give  no  quarter.    No  body  of  troops  has  the  right  to  declare 
that  it  will  not  give,  and  therefore  will  not  expect,  quarter;  but  a  com- 
mander is  permitted  to  direct  his  troops  to  give  no  quarter,  in  great 
straits,  when  his  own  salvation  makes  it  impossible  to  cumber  himself 
with  prisoners. 

61.  Troops  that  give  no  quarter  have  no  right  to  kill  enemies  already 
disabled  on  the  ground  or  prisoners  captured  by  other  troops. 

62.  All  troops  of  the  enemy  known  or  discovered  to  give  no  quarter 
in  general,  or  to  any  portion  of  the  army,  receive  none. 

63.  Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can 
expect  no  quarter. 

64.  If  American  troops  capture  a  train  containing  uniforms  of  the 
enemy,  and  the  commander  considers  it  advisable  to  distribute  them 


788  THE    MILITARY   LAWS    OP    THE    UNITED    STATES. 

for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted  to 
distinguish  the  American  soldier  from  the  enemy. 

65.  The  use  of  the  enemy's  national  standard,  flag,  or  other  emblem 
of  nationality  for  the  purpose  of  deceiving  the  enemy  in  battle  is  an 
act  of  perfidy  by  which  they  lose  all  claim  to  the  protection  of  the  laws 
of  war. 

66.  Quarter  having  been  given  to  an  enemy  by  American  troops  under 
a  misapprehension  of   his  true  character,  he  may,  nevertheless,  be 
ordered  to  suffer  death  if  within  three  days  after  the  battle  it  be 
discovered  that  he  belongs  to  a  corps  which  gives  no  quarter. 

67.  The  law  of  nations  allows  every  sovereign  government  to  make 
war  upon  another  sovereign  state,  and  therefore  admits  of  no  rules  or 
laws  different  from  those  of  regular  warfare  regarding  the  treatment  of 
prisoners  of  war,  although  they  may  belong  to  the  army  of  a  govern- 
ment wtuch  the  captor  may  consider  as  a  wanton  and  unjust  assailant. 

68.  Modern  wars  are  not  internecine  wars,  in  which  the  killing  of  the 
enemy  is  the  object.    The  destruction  of  the  enemy  in  modern  war, 
and,  indeed,  modern  war  itself,  are  means  to  obtain  that  object  of  the 
belligerent  which  lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69.  Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except  to 
drive  them  in  or  when  a  positive  order,  special  or  general,  has  been 
issued  to  that  effect. 

70.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells  or  food 
or  arms,  is  wholly  excluded  from  modern  warfare.    He  that  uses  it  puts 
himself  out  of  the  pale  of  the  law  and  usages  of  war. 

71.  Whoever  intentionally  inflicts  additional  wounds  on  an  enemy 
already  wholly  disabled  or  kills  such  an  enemy,  or  who  orders  or  en- 
courages soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted,  whether 
he  belongs  to  the  Army  of  the  United  States  or  is  an  enemy  captured 
after  having  committed  his  misdeed. 

72.  Money  and  other  valuables  on  the  person  of  a  prisoner,  such  as 
watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  Army  as  the  private  property  of  the  prisoner,  and  the  appro- 
priation of  such  valuables  or  money  is  considered  dishonorable,  and  is 
prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners 
or  in  their  possession  they  shall  be  taken  from  them,  and  the  surplus, 
after  providing  for  their  own  support,  appropriated  for  the  use  of  the 
Army,  under  the  direction  of  the  commander,  unless  otherwise  ordered 
by  the  Government.  Nor  can  prisoners  claim  as  private  property  large 
sums  found  and  captured  in  their  train,  although  they  have  been  placed 
in  the  private  luggage  of  the  prisoners. 

73.  All  officers,  when  captured,  must  surrender  their  side  arms  to  the 
captor.    They  may  be  restored  to  the  prisoner  in  marked  cases,  by  the 
commander,  to  signalize  admiration  of  his  distinguished  bravery  or 


OF  THE 

UNIVERSITY 


THE  MILITARY  LAWS  OF  THE  UOTd^g^^Sk8      789 

approbation  of  his  humane  treatment  of  prisoners  before  his  capture. 
The  captured  officer  to  whom  they  may  be  restored  can  not  wear  them 
during  captivity. 

74.  A  prisoner  of  war,  being  a  public  enemy,  is  the  prisoner  of  the 
government  and  not  of  the  captor.     No  ransom  can  be  paid  by  a 
prisoner  of  war  to  his  individual  captor  or  to  any  officer  in  command. 
The  government  alone  releases  captives,  according  to  rules  prescribed 
by  itself. 

75.  Prisoners  of  war  are  subject  to  confinement  or  imprisonment, 
such  as  may  be  deemed  necessary  on  account  of  safety,  but  they  are  to 
be  subjected  to  no  other  intentional  suffering  or  indignity.    The  con- 
finement and  mode  of  treating  a  prisoner  may  be  varied  during  his 
captivity  according  to  the  demands  of  safety. 

76.  Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food, 
whenever  practicable,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  govern- 
ment, according  to  their  rank  and  condition. 

77.  A  prisoner  of  war  who  escapes  may  be  shot  or  otherwise  killed 
in  his  flight,  but  neither  death  nor  any  other  punishment  shall  be 
inflicted  upon  him  simply  for  his  attempt  to  escape,  which  the  law  of 
war  does  not  consider  a  crime.     Stricter  means  of  security  shall  be  used 
after  an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  the  conspirators  may  be  rigorously  punished, 
even  with  death ;  and  capital  punishment  may  also  be  inflicted  upon 
prisoners  of  war  discovered  to  have  plotted  rebellion  against  the 
authorities  of  the  captors,  whether  in  union  with  fellow-prisoners  or 
other  persons. 

78.  If  prisoners  of  war,  having  given  no  pledge  nor  made  any  promise 
on  their  honor,  forcibly  or  otherwise  escape,  and  are  captured  again  in 
battle,  after  having  rejoined  their  own  army,  they  shall  not  be  punished 
for  their  escape,  but  shall  be  treated  simply  as  prisoners  of  war, 
although  they  will  be  subjected  to  stricter  confinement. 

79.  Every  captured  wounded  enemy  shall  be  medically  treated,  ac- 
cording to  the  ability  of  the  medical  staff. 

80.  Honorable  men,  when  captured,  will  abstain  from  giving  to  the 
enemy  information  concerning  their  own  army,  and  the  modern  law  of 
war  permits  no  longer  the  use  of  any  violence  against  prisoners  in  order 
to  extort  the  desired  information,  or  to  punish  them  for  having  given 
false  information. 

SECTION  IV. 

Partisans — Armed  enemies  not  belonging  to  the  hostile  army — Scouts — Armed  prowlers — 

War  rebels. 

81.  Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their 
army,  but  belonging  to  a  corps  which  acts  detached  from  the  main  body 
for  the  purpose  of  making  inroads  into  the  territory  occupied  by  the 


790  THE    MILITARY   LAWS    OF   THE    UNITED    STATES. 

enemy.    If  captured,  they  are  entitled  to  all  the  privileges  of  the  pris- 
oner of  war. 

82.  Men,  or  squads  of  men,  who  commit  hostilities,  whether  by  fight- 
ing or  inroads  for  destruction  or  plunder,  or  by  raids  of  any  kind,  with- 
out commission,  without  being  part  and  portion  of  the  organized  hostile 
army,  and  without  sharing  continuously  in  the  war,  but  who  do  so  with 
intermitting  returns  to  their  homes  and  avocations,  or  with  the  occa- 
sional assumption  of  the  semblance  of  peaceful  pursuits,  divesting 
themselves  of  the  character  or  appearance  of  soldiers — such  men,  or 
squads  of  men,  are  not  public  enemies,  and,  therefore,  if  captured  are 
not  entitled  to  the  privileges  of  prisoners  of  war,  but  shall  be  treated 
summarily  as  highway  robbers  or  pirates. 

83.  Scouts  or  single  soldiers,  if  disguised  in  the  dress  of  the  country, 
or  in  the  uniform  of  the  army  hostile  to  their  own,  employed  in  obtain- 
ing information,  if  found  within  or  lurking  about  the  lines  of  the  captor, 
are  treated  as  spies,  and  suffer  death. 

84.  Armed  prowlers,  by  whatever  names  they  may  be  called,  or  per- 
sons of  the  enemy's  territory,  who  steal  within  the  lines  of  the  hostile 
army  for  the  purpose  of  robbing,  killing,  or  of  destroying  bridges,  roads, 
or  canals,  or  of  robbing  or  destroying  the  mail,  or  of  cutting  the  tele- 
graph wires,  are  not  entitled  to  the  privileges  of  the  prisoner  of  war. 

85.  War  rebels  are  persons  within  an  occupied  territory  who  rise  in 
arms  against  the  occupying  or  conquering  army,  or  against  the  author- 
ities established  by  the  same.     If  captured,  they  may  suffer  death, 
whether  they  rise  singly,  in  small  or  large  bands,  and  whether  called 
upon  to  do  so  by  their  own,  but  expelled,  government  or  not.    They  are 
not  prisoners  of  war;  nor  are  they,  if  discovered  and  secured  before 
their  conspiracy  has  matured  to  an  actual  rising,  or  to  armed  violence. 

SECTION  v. 

Safe  conduct — Spies—  War  traitors— Captured  messengers — Abuse  of  the  flag  of  truce. 

86.  All  intercourse  between  the  territories  occupied  by  belligerent 
armies,  whether  by  traffic,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.     This  is  the  general  rule,  to  be  observed  without  special 
proclamation. 

Exceptions  to  this  rule,  whether  by  safe  conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  territory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government  or  by  the  highest  military 
authority. 

Contraventions  of  this  rule  are  highly  punishable. 

87.  Ambassadors,  and  all  other  diplomatic  agents  of  neutral  powers, 
accredited  to  the  enemy,  may  receive  safe  conducts  through  the  terri- 
tories occupied  by  the  belligerents,  unless  there  are  military  reasons  to 
the  contrary,  and  unless  they  may  reach  the  place  of  their  destination 
conveniently  by  another  route.    It  implies  no  international  affront  if 


THE    MILITARY    LAWS   OF   THE    UNITED    STATES.  791 

the  safe  conduct  is  declined.    Such  passes  are  usually  given  by  the 
supreme  authority  of  the  state,  and  not  by  subordinate  officers. 

88.  A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pre- 
tense, seeks  information  with  the  intention  of  communicating  it  to  the 
enemy. 

The  spy  is  punishable  with  death  by  hanging  by  the  neck,  whether 
or  not  he  succeed  in  obtaining  the  information  or  in  conveying  it  to 
the  enemy.' 

89.  If  a  citizen  of  the  United  States  obtains  information  in  a  legiti- 
mate manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil 
officer  or  a  private  citizen,  he  shall  suffer  death. 

90.  A  traitor  under  the  law  of  war,  or  a  war  traitor,  is  a  person  in  a 
place  or  district  under  martial  law  who,  unauthorized  by  the  military 
commander,  gives  information  of  any  kind  to  the  enemy  or  holds  inter- 
course with  him. 

91.  The  war  traitor  is  always  severely  punished.    If  his  offense  con- 
sists in  betraying  to  the  enemy  anything  concerning  the  condition, 
safety,  operations,  or  plans  of  the  troops  holding  or  occupying  the  place 
or  district,  his  punishment  is  death. 

92.  If  the  citizen  or  subject  of  a  country  or  place  invaded  or  con- 
quered gives  information  to  his  own  government,  from  which  he  is 
separated  by  the  hostile  army,  or  to  the  army  of  his  government,  he  is 
a  war  traitor,  and  death  is  the  penalty  of  his  offense. 

93.  All  armies  in  the  field  stand  in  need  of  guides,  and  impress  them 
if  they  can  not  obtain  them  otherwise. 

94.  No  person  having  been  forced  by  the  enemy  to  serve  as  guide  is 
punishable  for  having  done  so. 

95.  If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves 
as  a  guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war  traitor, 
and  shall  suffer  death. 

96.  A  citizen  serving  voluntarily  as  a  guide  against  his  own  country 
commits  treason,  and  will  be  dealt  with  according  to  the  law  of  his 
country. 

97.  Guides,  when  it  is  clearly  proved  that  they  have  misled  intention- 
ally, may  be  put  to  death. 

98.  All  unauthorized  or  secret  communication  with  the  enemy  is 
considered  treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign  vis- 
itors in  the  same,  can  claim  no  immunity  from  this  law.  They  may  com- 
municate with  foreign  parts,  or  with  the  inhabitants  of  the  hostile 
country,  so  far  as  the  military  authority  permits,  but  no  further.  Instant 
expulsion  from  the  occupied  territory  would  be  the  very  least  punish- 
ment for  the  infraction  of  this  rule. 

99.  A  messenger  carrying  written  dispatches  or  verbal  messages  from 
one  portion  of  the  army,  or  from  a  besieged  place,  to  another  portion 
of  the  same  army  or  its  government,  if  armed  and  in  the  uniform  of 


792  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

his  army,  and  if  captured  while  doing  so  in  the  territory  occupied  by 
the  enemy,  is  treated  by  the  captor  as  a  prisoner  of  war.  If  not  in 
uniform,  nor  a  soldier,  the  circumstances  connected  with  his  capture 
must  determine  the  disposition  that  shall  be  made  of  him. 

100.  A  messenger  or  agent  who  attempts  to  steal  through  the  terri- 
tory occupied  by  the  enemy  to  further,  in  any  manner,  the  interests  of 
the  enemy,  if  captured  is  not  entitled  to  the  privileges  of  the  prisoner 
of  war,  and  may  be  dealt  with  according  to  the  circumstances  of  the 
case. 

101.  While  deception  in  war  is  admitted  as  a  just  and  necessary 
means  of  hostility,   and  is   consistent  with  honorable  warfare,   the 
common  law  of  war  allows  even  capital  punishment  for  clandestine  or 
treacherous  attempts  to  injure  an  enemy,  because  they  are  so  dangerous 
and  it  is  so  difficult  to  guard  against  them. 

102.  The  law  of  war,  like  the  criminal  law  regarding  other  offenses, 
makes  no  difference  on  account  of  the  difference  of  sex,  concerning  the 
the  spy,  the  war  traitor,  or  the  war  rebel. 

103.  Spies,  war  traitors,  and  war  rebels  are  not  exchanged  according 
to  the  common  law  of  war.    The  exchange  of  such  persons  would 
require  a  special  cartel,  authorized  by  the  government,  or,  at  a  great 
distance  from  it,  by  the  chief  commander  of  the  army  in  the  field. 

104.  A  successful  spy  or  war  traitor,  safely  returned  to  his  own  army, 
and  afterwards  captured  as  an  enemy,  is  not  subject  to  punishment  for 
his  acts  as  a  spy  or  war  traitor,  but  he  may  be  held  in  closer  custody  as 
a  person  individually  dangerous. 

SECTION  VI. 
Exctynge  of  prisoners — Flags  of  truce1 — Flags  of  protection. 

105.  Exchanges  of  prisoners  take  place,  number  for  number,  rank 
for  rank,  wounded  for  wounded,  with  added  condition  for  added  con- 
dition, such,  for  instance,  as  not  to  serve  for  a  certain  period. 

1  FLAGS  OF  TRUCE. 

1.  Dtepatch  of  flag.— Communication  by  flag  of  truce,  being  an  exception  to  the  fundamental  rule  of 
nonintercourse  between  belligerents,  is  not  to  be  resorted  to  except  by  the  authority  of  the  President 
or  the  commanding  general  of  the  army  or  forces  operating  against  the  enemy  in  the  field.    No  inferior 
commander  is  empowered  to  resort  to  the  use  of  a  flag  of  truce  except  by  the  direction  of  such  author- 
ized superior. 

2.  The  party  sent  out  with  a  flag  of  truce  should  be  commanded  by  a  commissioned  officer  designated 
for  the  purpose.    His  command  should  consist  of  such  number  of  noncommissioned  officers  amlsoldiers 
as  may  be  requisite  for  the  purposes  of  the  mission,  and  no  more;  the  party  should  be  reduced  to  the 
least  number  that  may  be  adequate  andreasonable.    No  military  personnot  a  constituent  of  the  party, 
and  no  civilian,  should  be  allowed  to  accompany  the  flag,  except  by  the  express  authority  of  the  com- 
mander dispatching  the  same. 

3.  The  officer  commanding  the  party,  or  bearer  proper,  should  be  furnished  with  specific  instructions, 
in  writing  if  practicable,  informing  and  directing  him  precisely  as  to  his  function  and  duties,     Com- 
munications committed  to  him  to  be  conveyed  to  the  eneinv  should,  if  practicable,  be  in  writing. 

4.  The  officer  in  charge  should  comply  literally  and  exactly  with  his  instructions,  not  exceeding 
them.     On  approaching  the  enemy's  lines  he  should  exhibit  the  flag,  or  white  signalemployed  as  such, 
in  time  and  in  such  a  manner  as  to  prevent  his  party  being  fired  upon.    He  should  deliver  his  dis- 
patches, if  any,  to  an  officer  duly  authorized  to  receive  them,  should  receive  and  carefully  retain  such 
dispatches  as  may  be  delivered  to  him,  and,  his  mission  being  completed,  should  return  as  promptly 
as  possible  within  his  own  lines.    During  his  absence  he  shouldreq  uire  his  escort  to  confine  themselves 
to  their  strict  duties,  and  prohibit  their  holding  any  communication,  except  such  as  may  be  absolutely 
necessary,  with  the  military  persons  or  civilians  within  the  enemy's  lines. 

5.  The  officer  in  charge,  on  his  return,  is  to  make  at  once  to  the  commander  by  whose  order  he  was 
dispatched  a  full  report  of  the  performance  of  his  mission,  including  his  precise  communications  to  the 


THE   MILITARY   LAWS   OF   THE    UNITED   STATES.  793 

106.  In  exchanging  prisoners  of  war,  such  numbers  of  persons  of 
inferior  rank  may  be  substituted  as  an  equivalent  for  one  of  superior 
rank  as  may  be  agreed  upon  by  cartel,  which  requires  the  sanction  of 
the  Government  or  of  the  commander  of  the  army  in  the  field. 

107.  A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the  captor 
his  rank,  and  he  is  not  to  assume  a  lower  rank  than  belongs  to  him,  in 
order  to  cause  a  more  advantageous  exchange,  nor  a  higher  rank,  for 
the  purpose  of  obtaining  better  treatment. 

Offenses  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing  to 
release  such  prisoners. 

108.  The  surplus  number  of  prisoners  of  war  remaining  after  an 
exchange  has  taken  place  is  sometimes  released  either  for  the  payment 
of  a  stipulated  sum  of  money,  or,  in  urgent  cases,  of  provision,  cloth- 
ing, or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109.  The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to 
both  belligerents.     If  no  general  cartel  has  been  concluded  it  can  not 
be  demanded  by  either  of  them.     No  belligerent  is  obliged  to  exchange 
prisoners  of  war. 

enemy  and  the  precise  acts  and  communications  of  the  enemy  in  reply  thereto.  He  should  furnish 
also  a  list  of  all  persons,  if  any,  accompanying  the  flag  or  returning  with  it,  such  as  exchanged  pris- 
oners, persons  authorized  to  pass  the  lines,  etc.,  with  the  fact  of  their  examination  and  all  obtainable 
particulars  of  their  character  and  purposes. 

6.  Reception  of  flag.— By  the  law  of  nations,  the  bearer  in  good  faith  of  a  flag  of  truce  is,  with  his 
escort,  inviolable.    The  flag  is  not  to  be  tired  upon,  nor  the  bearer,  or  persona  properly  accompanying 
him,  to  be  made  prisoners.    They  are  to  be  r/aceived  with  respect  and  treated  with  courtesy,  and  at  the 
end  of  their  mission  to  be  allow  eel  to  return  without  impediment.    Where  unavoidably  detained,  they 
will,  if  necessary,  properly  be  sheltered  and  subsisted  and  their  animals  foraged. 

7.  But  as  a  flag  of  truce  may  be  employed  as  a  cover  for  illegal  designs,  the  party  should  not  be 
allowed  to  enter  within  the  outer  line  of  guards  or  pickets  in  the  absence  of  express  authority  from 
the  commander  of  the  forces,  and  such  precautions  should  be  taken  as  to  prevent  their  making 
observations  or  obtaining  information. 

8.  The  flag  should  either  be  met  by  another  flag  on  the  neutral  ground  or  territory  intervening 
between  the  hostile  lines,  or,  on  its  arrival  near  the  outer  line,  should  be  halted  by  the  nearest  senti- 
nel or  vedette  and  ordered  to  face  in  the  direction  from  which  it  came.    The  sentinel  or  vedette  will 
then,  through  his  corporal,  communicate  the  arrival  of  the  flag  to  the  officer  in  command  of  the  nearest 
picket  post  or  guard,  who  will  himself  proceed,  or  will  send  a  commissioned  or  noncommissioned  offi- 
cer, with  a  small  detachment,  to  meet  the  flag  and  ascertain  its  object,  of  which  he  will  at  once  cause 
information  to  be  transmitted  to  the  chief  commander.    The  commander,  if  he  desires  to  receive  the 
flag,  which,  in  discretion,  he  may  refuse  to  do,  will  thereupon  dispatch  a  commissioned  officer,  with 
suitable  escort  and  proper  instructions,  to  formally  receive  the  flag  and  respond  officially  to  its  com- 
munications, or  to  take  charge  of  such  dispatches  as  the  bearer  may  desire  to  have  forwarded  to  the 
commander,  returning  later  with  the  response,  if  any. 

9.  Should  the  officer  in  charge  of  the  flag  insist,  in  obedience  to  his  instructions,  upon  a  personal 
interview  with  the  chief  commander,  the  latter  may,  in  his  discretion,  refuse  such  interview,  or  he 
may  proceed  to  meet  the  flag  in  person,  or  he  may  cause  the  bearer  to  be  conducted  to  his  headquar- 
ters, or  other  place  appointed,  his  eyes  being  bandaged  if  deemed  expedient.    But  no  member  of  his 
escort  should,  except  by  express  authority,  be  admitted  with  him  within  the  lines. 

10.  Where,  indeed,  the  flag  is  employed  as  a  means  of  safe  conduct  for  exchanged  prisoners,  hostages, 
refugees,  or  other  civilians  permitted  by  proper  authority  to  pass  the  lines,  these  may  be  admitted  by 
the  authority  of  the  chief  commander,  after  having  been  carefully  examined  to  ascertain  if  they  have 
in  their  possession  supplies  or  merchandise.    They  should  be  allowed  to  bring  in  with  them  only 
necessary  personal  effects. 

11.  Until  the  purpose  of  a  flag  of  truce  is  accomplished  and  the  party  returns,  the  bearer  and  those 
accompanying  him  (except  so  far  as  admitted  by  authority  within  the  lines)  will  remain  halted  in  the 
same  or  other  appointed  place,  in  the  presence  of  an  adequate  guard,  or,  if  unusual  delay  be  involved, 
may  be  allowed  to  make  camp,  under  proper  observation.     During  their  stay  no  conversation  should 

.  be  held  with  them  on  any  subject  directly  or  indirectly  relating  to  military  or  public  affairs,  and  the 
guard  attending  them  should  be  accompanied  by  a  commissioned  or  noncommissisned  officer  to  insure 
the  observance  of  this  precaution. 

12.  Should  the  officer  in  charge  of  the  flag,  or  any  of  his  escort,  be  detected  in  an  attempt  to  obtain 
illicit  information,  or  in  any  other  form  ot  abuse  of  the  privilege  of  the  flag,  or  should  there  arise  a 
reasonable  ground  of  suspicion  that  the  flag  has  not  been  dispatched,  or  is  not  being  employed,  in 
good  faith,  the  bearer  and  those  implicated  may  be  detained  for  investigation  and  punishment  accord- 
ing to  the  laws  of  war.     (G.  O.,  No.  43,  Headquarters  of  the  Army,  May  20, 1893.) 


794      THE  MILITARY  LAWS  OP  THE  UNITED  STATES. 

A  cartel  is  voidable  as  soon  as  either  party  has  violated  it. 

110.  No  exchange  of  prisoners  shall  be  made  except  after  complete 
capture,  and  after  an  accurate  account  of  them,  and  a  list  of   the 
captured  officers  has  been  taken. 

111.  The  bearer  of  a  flag  of  truce  can  not  insist  upon  being  admitted. 
He  must  always  be  admitted  with  great  caution.    Unnecessary  fre- 
quency is  carefully  to  be  avoided. 

112.  If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  engage- 
ment, he  can  be  admitted  as  a  very  rare  exception  only.    It  is  no 
breach  of  good  faith  to  retain  such  flag  of  truce,  if  admitted  during 
the  engagement.    Firing  is  not  required  to  cease  on  the  appearance  of 
a  flag  of  truce  in  battle. 

113.  If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an 
engagement,  is  killed  or  wounded,  it  furnishes  no  ground  of  complaint 
whatever. 

114.  If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce  has 
been  abused  for  surreptitiously  obtaining  military  knowledge,  the 
bearer  of  the  flag  thus  abusing  his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is  its 
sacredness,  that  while  its  abuse  is  an  especially  heinous  offense,  great 
caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer  of  a 
flag  of  truce  as  a  spy. 

115.  It  is  customary  to  designate  by  certain  flags  (usually  yellow) 
the  hospitals  in  places  which  are  shelled,  so  that  the  besieging  enemy 
may  avoid  firing  on  them.    The  same  has  been  done  in  battles  when 
hospitals  are  situated  within  the  field  of  the  engagement. 

116.  Honorable  belligerents  often  request  that  the  hospitals  within 
the  territory  of  the  enemy  may  be  designated,  so  that  they  may  be 
spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or 
signals  of  protection  as  much  as  the  contingencies  and  the  necessities 
of  the  fight  will  permit. 

117.  It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiendish- 
ness,  to  deceive  the  enemy  by  flags  of  protection.    Such  act  of  bad  faith 
may  be  good  cause  for  refusing  to  respect  such  flags. 

118.  The  besieging  belligerent  has  sometimes  requested  the  besieged 
to  designate  the  buildings  containing  collections  of  works  of  art,  scien- 
tific museums,  astronomical  observatories,  or  precious  libraries,  so  that 
their  destruction  may  be  avoided  as  much  as  possible. 

SECTION  VII. 

The  parole. 

119.  Prisoners  of  war  may  be  released  from  captivity  by  exchange, 
and,  under  certain  circumstances,  also  by  parole. 

120.  The  term  parole  designates  the  pledge  of  individual  good  faith 
and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who  gives  his 


THE   MILITARY   LAWS   OF   THE   UNITED   STATES.  795 

parole  shall  have  been  dismissed,  wholly  or  partially,  from  the  power  of 
the  captor. 

121.  The  pledge  of  the  parole  is  always  an  individual,  but  not  a  pri- 
vate act. 

122.  The  parole  applies  chiefly  to  prisoners  of  war  whom  the  captor 
allows  to  return  to  their  country  or  to  live  in  greater  freedom  within 
the  captor's  country  or  territory  on  conditions  stated  in  the  parole. 

123.  Eelease  of  prisoners  of  war  by  exchange  is  the  general  rule; 
release  by  parole  is  the  exception. 

124.  Breaking  the  parole  is  punished  with  death  when  the  person 
breaking  the  parole  is  captured  again. 

Accurate  lists,  therefore,  of  the  paroled  persons  must  be  kept  by  the 
belligerents. 

125.  When  paroles  are  given  and  received  there  must  be  an  exchange 
of  two  written  documents,  in  which  the  name  and  rank  of  the  paroled 
individuals  are  accurately  and  truthfully  stated. 

126.  Commissioned  officers  only  are  allowed  to  give  their  parole,  and 
they  can  give  it  only  with  the  permission  of  their  superior,  as  long  as  a 
superior  in  rank  is  within  reach. 

127.  No  noncommissioned  officer  or  private  can  give  his  parole  except 
through  an  officer.    Individual  paroles  not  given  through  an  officer  are 
not  only  void,  but  subject  the  individuals  giving  them  to  the  punish- 
ment of  death  as  deserters.    The  only  admissible  exception  is  where 
individuals,  properly  separated  from  their  commands,  have  suffered 
long  confinement  without  the  possibility  of  being  paroled  through  an 
officer. 

128.  No  paroling  on  the  battlefield,  no  paroling  of  entire  bodies  of 
troops  after  a  battle,  and  no  dismissal  of  large  numbers  of  prisoners, 
with  a  general  declaration  that  they  are  paroled,  is  permitted  or  of  any 
value. 

129.  In  capitulations  for  the  surrender  of  strong  places  or  fortified 
camps  the  commanding  officer,  in  cases  of  urgent  necessity,  may  agree 
that  the  troops  under  his  command  shall  not  fight  again  during  the 
war  unless  exchanged. 

130.  The  usual  pledge  given  in  the  parole  is  not  to  serve  during  the 
existing  war  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against  the 
paroling  belligerent  or  his  allies  actively  engaged  in  the  same  war. 
These  cases  of  breaking  the  parole  are  patent  acts,  and  can  be  visited 
with  the  punishment  of  death  5  but  the  pledge  does  not  refer  to  internal 
service,  such  as  recruiting  or  drilling  the  recruits,  fortifying  places  not 
besieged,  quelling  civil  commotions,  fighting  against  belligerents  uncon- 
nected with  the  paroling  belligerents,  or  to  civil  or  diplomatic  service 
for  which  the  paroled  officer  may  be  employed. 

131.  If  the  Government  does  not  approve  of  the  parole,  the  paroled 
officer  must  return  into  captivity,  and  should  the  enemy  refuse  to  receive 
him,  he  is  free  of  his  parole. 


796  THE    MILITARY    LAWS    OF    THE    UNITED    STATES. 

132.  A  belligerent  government  may  declare,  by  a  general  order, 
whether  it  will  allow  paroling,  and  on  what  conditions  it  will  allow  it. 
Such  order  is  communicated  to  the  enemy. 

133.  No  prisoner  of  war  can  be  forced  by  the  hostile  government  to 
parole  himself,  and  no  government  is  obliged  to  parole  prisoners  of  war 
or  to  parole  all  captured  officers  if  it  paroles  any.     As  the  pledging  of 
the  parole  is  an  individual  act,  so  is  paroling,  on  the  other  hand,  an  act 
of  choice  on  the  part  of  the  belligerent. 

134.  The  commander  of  an  occupying  army  may  require  of  the  civil 
officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may  consider 
necessary  for  the  safety  or  security  of  his  army,  and  upon  their  failure 
to  give  it  he  may  arrest,  confine,  or  detain  them. 

SECTION  VIII. 

Armistice—  Capitu  lation. 

135.  An  armistice  is  the  cessation  of  active  hostilities  for  a  period 
agreed  between  belligerents.    It  must  be  agreed  upon  in  writing,  and 
duly  ratified  by  the  highest  authorities  of  the  contending  parties. 

136.  If  an  armistice  be  declared,  without  conditions,  it  extends  no 
further  than  to  require  a  total  cessation  of  hostilities  along  the  front  of 
both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed,  and 
must  be  rigidly  adhered  to  by  both  parties.  If  either  party  violates 
any  express  condition,  the  armistice  may  be  declared  null  and  void  by 
the  other. 

137.  An  armistice  may  be  general,  and  valid  for  all  points  and  lines 
of  the  belligerents,  or  special,  that  is,  referring  to  certain  troops  or 
certain  localities  only. 

An  armistice  maybe  concluded  for  a  definite  time  or  for  an  indefinite 
time,  during  which  either  belligerent  may  resume  hostilities  on  giving 
the  notice  agreed  upon  to  the  other. 

138.  The  motives  which  induce  the  one  or  the  other  belligerent  to 
conclude  an  armistice,  whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace  or  to  prepare  during  the  armistice  for  a  more  vigorous 
prosecution  of  the  war,  does  in  no  way  affect  the  character  of  the 
armistice  itself. 

139.  An  armistice  is  binding  upon  the  belligerents  from  the  day  of 
the  agreed  commencement;  but  the  officers  of  the  armies  are  respon- 
sible from  the  day  only  when  they  receive  official  information  of  its 
existence. 

140.  Commanding  officers  have  the  right  to  conclude  armistices  bind- 
ing on  the  district  over  which  their  command  extends,  but  such  armis- 
tice is  subject  to  the  ratification  of  the  superior  authority,  and  ceases  so 
soon  as  it  is  made  known  to  the  enemy  that  the  armistice  is  not  ratified, 
even  if  a  certain  time  for  the  elapsing  between  giving  notice  of  cessa- 
tion and  the  resumption  of  hostilities  should  have  been  stipulated  for. 


THE    MILITARY    LAWS    OF   THE    UNITED    STATES.  797 

141.  It  is  incumbent  upon  the  contracting  parties  of  an  armistice  to 
stipulate  what  intercourse  of  persons  or  traffic  between  the  inhabitants 
of  the  territories  occupied  by  the  hostile  armies  shall  be  allowed,  if  any. 
If  nothing  is  stipulated,  the  intercourse  remains  suspended,  as  during 
actual  hostilities. 

142.  An  armistice  is  not  a  partial  or  a  temporary  peace;  it  is  only 
the  suspension  of  military  operations  to  the  extent  agreed  upon  by  the 
parties. 

143.  When  an  armistice  is  concluded  between  a  fortified  place  and 
the  army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  subject 
that  the  besieger  must  cease  all  extension,  perfection,  or  advance  of 
his  attacking  works  as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists  whether 
the  besieged  have  the  right  to  repair  breaches  or  to  erect  new  works 
of  defense  within  the  place  during  an  armistice,  this  point  should  be 
determined  by  express  agreement  between  the  parties. 

144.  So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no  right 
to  demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  ammunition 
in  his  possession  during  the  time  which  elapses  between  the  signing 
and  the  execution  of  the  capitulation,  unless  otherwise  stipulated  in 
the  same. 

145.  When  an  armistice  is  clearly  broken  by  one  of  the  parties,  the 
other  party  is  released  from  all  obligation  to  observe  it. 

146.  Prisoners  taken  in  the  act  of  breaking  an  armistice  must  be 
treated  as  prisoners  of  war,  the  officer  alone  being  responsible  who 
gives  the  order  for  such  a  violation  of  an  armistice.    The  highest 
authority  of  the  belligerent  aggrieved  may  demand  redress  for  the 
infraction  of  an  armistice. 

147.  Belligerents  sometimes  conclude  an  armistice  while  their  pleni- 
potentiaries are  met  to  discuss  the  conditions  of  a  treaty  of  peace;  but 
plenipotentiaries  may  meet  without  a  preliminary  armistice;  in  the 
latter  case,  the  war  is  carried  on  without  any  abatement. 

SECTION  IX. 

Assassination. 

148.  The  law  of  war  does  not  allow  proclaiming  either  an  individual 
belonging  to  the  hostile  army  or  a  citizen  or  a  subject  of  the  hostile 
government  an  outlaw  who  may  be  slain  without  trial  by  any  captor, 
any  more  than  the  modern  law  of  peace  allows  such  intentional  out- 
lawry; on  the  contrary,  it  abhors  such  outrage.    The  sternest  retalia- 
tion  should  follow  the  murder  committed  in  consequence  of  such 
proclamation,  made  by  whatever  authority.    Civilized  nations  look 
with  horror  upon  offers  of  rewards  for  the  assassination  of  enemies  as 
relapses  into  barbarism. 


798  THE   MILITARY   LAWS   OF   THE   UNITED   STATES. 

SECTION  X. 

Insurrection— Civil  war — Rebellion. 

149.  Insurrection  is  the  rising  of  people  in  arms  against  their  gov- 
ernment or  a  portion  of  it,  or  against  one  or  more  of  its  laws,  or  against 
an  officer  or  officers  of  the  government.     It  may  be  confined  to  mere 
armed  resistance,  or  it  may  have  greater  ends  in  view. 

150.  Civil  war  is  war  between  two  or  more  portions  of  a  country  or 
state,  each  contending  for  the  mastery  of  the  whole,  and  each  claiming 
to  be  the  legitimate  government.    The  term  is  also  sometimes  applied 
to  war  of  rebellion,  when  the  rebellious  provinces  or  portions  of  the 
state  are  contiguous  to  those  containing  the  seat  of  government. 

151.  The  term  rebellion  is  applied  to  an  insurrection  of  large  extent, 
and  is  usually  a  war  between  the  legitimate  government  of  a  countrv 
and  portions  of  provinces  of  the  same  who  seek  to  throw  off  their  alle- 
giance to  it  and  set  up  a  government  of  their  own. 

152.  When  humanity  induces  the  adoption  of  the  rules  of  regular 
war  toward  rebels,  whether  the  adoption  is  partial  or  entire,  it  does  in 
no  way  whatever  imply  a  partial  or  complete  acknowledgment  of  their 
government,  if  they  have  set  up  one,  or  of  them  as  an  independent  or 
sovereign  power.    Neutrals  have  no  right  to  make  the  adoption  of  the 
rules  of  war  by  the  assailed  government  toward  rebels  the  ground  of 
their  own  acknowledgment  of  the  revolted  people  as  an  independent 
power. 

153.  Treating  captured  rebels  as  prisoners  of  war,  exchanging  them, 
concluding  of  cartels,  capitulations,  or  other  warlike  agreements  with 
them,   addressing   officers  of  a  rebel  army  by  the    rank  they  may 
have  in  the  same,  accepting  flags  of  truce,  or,  on  the  other  hand, 
proclaiming  martial  law  in  their  territory,  or  levying  war  taxes  or 
forced  loans,  or  doing  any  other  act  sanctioned  or  demanded  by  the  law 
and  usages  of  public  war  between  sovereign  belligerents,  neither  proves 
nor  establishes  an  acknowledgment  of  the  rebellious  people,  or  of  the 
government  which  they  may  have  erected,  as  a  public  or  sovereign 
power.    Nor  does  the  adoption  of  the  rules  of  war  toward  rebels  imply 
an  engagement  with  them  extending  beyond  the  limits  of  these  rules. 
It  is  victory  in  the  field  that  ends  the  strife  and  settles  the  future  rela- 
tions between  the  contending  parties. 

154.  Treating,  in  the  field,  the  rebellious  enemy  according  to  the  law 
and  usages  of  war  has  never  prevented  the  legitimate  government 
from  trying  the  leaders  of  the  rebellion  or  chief  rebels  for  high  treason, 
and  from  treating  them  accordingly,  unless  they  are  included  in  a  gen- 
eral amnesty. 

155.  All  enemies  in  regular  war  are  divided  into  two  general  classes — 
that  is  to  say,  into  combatants  and  noncombatants,  or  unarmed  citizens 
of  the  hostile  government. 

The  military  commander  of  the  legitimate  government,  in  a  war  of 


THE    MILITARY    LAWS    OF    THE    UNITED    STATES.  799 

rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted  portion 
of  the  country  and  the  disloyal  citizen.  The  disloyal  citizen  may  fur- 
ther be  classified  into  those  citizens  known  to  sympathize  with  the 
rebellion  without  positively  aiding  it,  and  those  who,  without  taking 
up  arms,  give  positive  aid  and  comfort  to  the  rebellious  enemy  without 
being  bodily  forced  thereto. 

156.  Common  justice  and  plain  expediency  require  that  the  military 
commander  protect  the  manifestly  loyal  citizens  in  revolted  territories 
against  the  hardships  of  the  war  as  much  as  the  common  misfortune  of 
all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as  much  as  lies 
within  his  power,  on  the  disloyal  citizens  of  the  revolted  portion  or 
province,  subjecting  them  to  a  stricter  police  than  the  noncombatant 
enemies  have  to  suffer  in  regular  war;  and  if  he  deems  it  appropriate, 
or  if  his  government  demands  of  him  that  every  citizen  shall,  by  an 
oath  of  allegiance  or  by  some  other  manifest  act,  declare  his  fidelity 
to  the  legitimate  government,  he  may  expel,  transfer,  imprison,  or  fine 
the  revolted  citizens  who  refuse  to  pledge  themselves  anew  as  citizens 
obedient  to  the  law  and  loyal  to  the  government. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be  placed 
upon  such  oaths,  the  commander  or  his  government  have  the  right  to 
decide. 

157.  Armed  or  unarmed  resistance  by  citizens  of  the  United  States 
against  the  lawful  movements  of  their  troops  is  levying  war  against 
the  United  States,  and  is  therefore  treason. 


INDEX. 


[The  references  are  to  paragraphs  unless  pages  are  indicated.    Articles  of  War  arc  indicated  by 
their  numbers,  the  letters  A.  W,  following  the  number  of  the  article.] 


Absence : 

certificates  of,  12  A.  "W. 

from  parade,  etc.,  33  A.  W. 

one  mile  from  camp,  etc.,  34  A.  "W. 

with  leave.    (See  Leaves  of  Absence  and  Fur- 
loughs.) 

without  leave,  950, 1051, 32  A.  W. 
Accountability  (see  Accounts    and  Property  Ac- 
countability) : 

arms,  etc. ,10  A.  W. 

clothing,  573. 

money,  130-133, 134-148, 495, 496. 

ordnance,  869, 870. 

property,  1230-1235. 

quartermaster  stores,  573. 

signal  property,  921, 922. 
Accountant.    (See  Expert  Accountant.) 
Accounting : 

accounts,  rendition  of,  132,  495, 496. 

administrative  examination,  153. 

appeals  to  Comptroller,  141. 

auditors,  138-165. 

certificates  of  differences,  142. 

certified  balances,  141. 

Comptroller,  134-165. 

clothing,  573. 

deceased  officers'  effects,  993, 994. 

decisions  of  Auditors,  139-145. 
Comptroller,  136. 

differences,  certificates  of,  142. 

evidence,  new,  when  received,  143. 

examination  of  accounts,  136-139,  141,  142,  145, 
151-159. 

forms  for,  135. 

ordnance,  869,  870. 

property,  1230-1237. 

reopening,  143, 156. 

rules  for,  to  be  made  by  heads  of  Executive 
Departments,  153. 

rules  for,  to  be  made  by  Secretary  of  Treasury, 
152. 

signal  property,  921,  922. 

vouchers,  preservation  of,  144. 
Accounting  Officers : 

appeals  from,  to  Comptroller,  141. 

1919 51 


Accounting  Officers— Continued. 

auditors,  138-165. 
certificates  of  differences,  142. 
certification  of  records,  150. 
certified  balances  conclusive,  141. 
claims,  156, 164, 165;  note,  198-215, 298-302. 
claims,  settled,  not  to  be  reopened,  156. 
Comptroller,  134-165. 
debts,  recovery  of,  140. 
decisions  by,  136, 141, 145. 

review  of,  by  Comptroller,  145. 
designation  of,  138, 139. 
discharges  to  be  returned  by,  162. 
distress  warrants,  235-249. 
duties,  134-165. 
examination  of  accounts,  136-139,  141,  142,  151, 

152-157, 158, 159, 160, 161. 
forms  for  use  in  accounting,  135. 
lost  checks,  163, 514. 
overpayments,  161. 
powers,  134-165. 
preservation  of  records,  144. 
property  accountability,  1230-1233. 
rendition  of  accounts,  132,  495,  496. 
requisitions  for  advances  of  funds,  146. 
settlements  by,  137, 143, 145, 159, 160, 161. 
stoppages,  636,  637. 
suspensions,  143. 
transcripts  of  records,  150. 
transfer  of  duties,  155, 
warrants,  146. 

warrants  of,  refusal  to  pay,  506. 
Accounts    (see   Accountability     and    Accounting 

Officers) : 

appeals  from  decisions  of  auditors,  141. 
appropriations  to  be  kept  distinct,  233. 
auditors,  138-165. 
balances,  certification  of,  141. 
certificates  of  differences,  142. 
clothing,  563,  565. 
Comptroller,  134-165. 
debts,  recovery  of,  140. 
decisions  of  Comptroller,  136. 
deficiencies,  133, 636,  637. 
delinquency  in  rendition  of,  132, 133. 
differences,  certificates  of,  142. 

801 


802 


INDEX. 


Accounts— Continued. 

entries  of  receipts  and  payments,  487. 

examination  of  claims,  149. 

fiscal  year,  131. 

forms  for,  135. 

funds,  receipt  and  transfer  of,  487. 

how  kept,  233. 

indebtedness  of  delinquents,  report  of,  133. 

Indian  affairs,  383. 

Land  Office,  378. 

lost  checks,  163. 

mailing,  132. 

monthly,  to  be  rendered,  495. 

new  evidence  in  accounting,  143. 

outstanding  for  three  years,  220. 

overpayments,  allowance  in  settlement,  161. 

preservation  of,  144. 

records,  certification  of,  150. 

rendition  of,  132,  495, 496, 502. 

reopening  of,  143,  156. 

separate  accounts  of  appropriations,  233. 

settled,  not  to  be  reexamined,  156. 

settlements  may  be  ordered  by  Comptroller,  137. 

statements  of  differences,  142. 

stoppages,  636, 637. 

suspended  items,  143. 

transmission,  132. 

Volunteer  homes,  supervision  of,  524. 

vouchers  to  be  preserved,  144. 

"War  Department,  139, 153. 

where  audited,  138, 139. 
Accused : 

as  witness,  1346. 

Acting  Hospital  Stewards.     (See  Hospital  Corps.) 
Adjutant-General : 

appointment,  455,  516. 
Adjutant-General's  Department: 

Adjutant-General,  455,  516. 

appointments,  456, 516, 517. 

assistant  adjutants-general,  516, 517. 

clerical  force,  64. 

correspondence,  516,  note. 

duties,  516;  note,  518, 519. 

inspection  duty,  518. 

orders,  516,  note. 

organization,  516. 

promotions,  516. 

recruiting  service,  516,  note. 

returns,  519, 1249, 1250. 

vacancies,  how  filled,  517. 
Adjutants-General  of  Militia: 

returns  of,  81, 1249, 1250. 
Adjutants: 

regimental,  1071, 1075, 1078. 
Advances  of  Funds : 

forbidden,  146, 481. 
Advertising : 

authority  for,  1151, 1154. 

domestic  productions  favored,  1158, 1163. 

in  District  of  Columbia,  1156, 1157. 

Pacific  Coast,  advertising  to  be  done  on,  1158. 

rates,  1155,  1156,  1157. 

written  authority  for,  1154. 
Advising  to  Desert  (51  A.W.): 


Affidavits  in- 
administrative  affairs,  531 . 

oaths,  by  whom  administered,  73, 74,  531. 

settlement  of  clothing  accounts,  73. 
Agents : 

disbursing,  expenses  of,  253. 

employed  by  firms,  not  to  be  agents  of  United 

States  in  dealing  with  firms,  126. 
Agreements,    Contractual.     (See    Contracts   and 

Purchases. ) 
Agreements,  International : 

convention  with  Mexico,  pp.  776-779. 

Geneva  convention,  pp.  759-775. 
Aids: 

appointment,  442,  note. 

brigadier-general,  442. 

lieutenant-general,  441. 

major-general,  442. 

military  secretary,  441. 

number,  442. 

pay,  608. 

qualifications,  442. 

rank,  441, 442. 

selection,  442. 

tour  of  duty,  442,  note. 
Alarms: 

false,  41  A.  W. 

Aliens.     (See  Citizenship  and  Naturalization.) 
Allowances: 

clothing,  562, 565. 

discharged  officers,  635. 

forage,  559, 560, 571,  note. 

fuel,  559, 560, 571,  note. 

mileage,  630-635. 

quarters,  571,  572. 

rations,  580-586. 

Alteration  of  Clothing,  567, 568. 
American  Manufactures  and  Productions: 

preference  for,  in  contracts,  883, 1158, 1163. 
American  Society  of  Civil  Engineers: 

programmes  of  tests,  895. 
Ammunition : 

wasting,  16  A.  W. 
Anchorage  Grounds  in — 

Chicago  Harbor,  848, 849. 

District  of  Columbia,  852-855. 

New  York  Harbor,  850, 851. 
Animals : 

artillery  horses,  1167, 1168. 

bedding  allowance,  559,  note. 

cavalry  horses,  1167, 1168. 

draft,  1169-1171. 

forage  allowance,  559,  560. 

limitation  on  numbers  of,  1168, 1169, 1171. 

mules,  546, 547, 1170, 1171. 

numbers  of,  546, 549, 1168, 1169, 1171. 

oxen,  1170. 

purchases  of,  how  made,  546-549, 1167, 1171. 

Quartermaster's  Department,  1167-1171. 
Annual  Reports: 

appropriations  of  "War  Department,  77, 78. 

arrears  of  business,  48. 

condition  of  business,  48. 


INDEX. 


803 


Annual  Reports— Continued, 
contents,  50. 

contingent  expenses,  military  establishment,  78. 
contingent  funds,  47. 

copies  of  documents  for  Public  Printer,  51. 
detailed  employees,  48. 
employees,  49. 

below  fair  standard  of  efficiency,  55. 
expenditures  of  "War  Department,  77, 78. 
proposals,  etc.,  79. 
rented  buildings,  54. 
returns  of  militia,  81, 1249, 1250. 
submitted  at  commencement  of  regular  session 

of  Congress,  50. 

time  covered  by,  50. 

'  Antietam  Battlefield: 

battle  lines,  marking,  etc.,  1825-1829. 
cannon,  etc.,  1827. 

Crampton's  Gap,  marking  lines  at,  1829. 
gun  carriages,  1828. 
Harpers  Ferry,  marking  lines  at,  1829. 
lands,  1825, 1826, 1827, 1829. 
maps,  1829. 

marking  lines,  etc.,  1825-1829. 
monuments,  etc.,  1825-1829. 
roads,  1827, 1828, 1829. 
South  Mountain,  marking  lines,  etc.,  1829. 
tablets,  1825-1829. 
Apparatus  for  Resection,  681, 682. 
Appeals— 

from  decisions  of  regimental  courts,  1324. 
in  accounting,  141. 
Appointing  Power,  4. 
Appointments— 
in  military  service,  937. 
in  staff,  455, 456. 
to  office,  4. 

Appropriations  (see  Treasury  Department) : 
accounts,  132, 495, 496,  502. 
advances  forbidden,  481. 
application,  176, 488. 
balances,  application  of,  181, 182. 
buildings,  not  to  exceed,  512, 1147, 1149. 
contingent,  limitation  on,  179. 
exceeding,  prohibited,  1147. 
expenditure  of— 
limitation,  176, 177. 
not  to  exceed,  488. 
incidental  expenses,  179. 
indefinite,  181. 

miscellaneous  expenses,  limitation,  179. 
permanent,  180, 181. 
separate  accounts  of,  496. 
unexpended  balances,  181. 
War  Department,  how  drawn,  175. 
Aqueduct.     (See  Washington  Aqueduct.) 
Armories  (see  Arsenals  and   Ordnance  Depart- 
ment), 896-912a. 

Arms  (see  Armories  and  Arsenals,  Ordnance  De- 
partment, Executive  Departments,  and  the 
Militia) : 

accountability  for,  10  A.  W. 
appropriations  for,  not  to  lapse,  912, 1282, 1283. 
cost,  how  charged,  912. 


Arms— Continued, 
distribution,  904, 1279-1282. 
Executive  Departments,  issues  to,  012a. 

issues  to  militia,  904, 912, 1279-1283. 

magazine,  909-911. 

manufacture  of,  896, 899, 906-912. 

purchases,  1277. 

States,  1275,  1279-1282, 1290, 1291. 

system  adopted,  906, 909-911. 

Territories,  1275,  1279-1282, 1290, 1291. 
Army  of  the  United  States: 

command  in,  443. 

composition,  436. 

Navy,  transfers  to,  370. 

organization,  436. 

promotion,  rule  of,  457. 

strength,  438. 

supplies  for,  to  be  marked,  1178. 

transfers  to  Navy,  370. 
Army  Register: 

authority  for,  431,  432. 

contents,  433-435. 

enlisted  service  to  appear,  435. 

furnished  to  Congress,  431,  432. 

lineal  rank  to  appear,  435. 

pay  and  emoluments  to  appear,  433. 

rank,  434,  435. 

service  in  volunteers,  435. 
Army  Regulations: 

binding  force,  429,  note. 

classification,  430,  note. 

evidential  value,  429,  note. 

history,  430,  note. 

judicial  notice,  429,  note. 

power  to  establish,  2 ;  note,  429, 430. 

power  to  issue,  429,  note. 

public  have  notice  of,  429,  note. 
Arrears: 

no  salary  payable  to  officers  in,  115 
Arrest  (see  Courts-Martial) : 

deserters,  1048-1050. 

in  Indian  country,  1488-1490. 

military,  1292, 1294, 1295. 

of  officers,  65, 70, 71  A.  W. 

Arsenals  (see  Armories  and  Ordnance  Depart- 
ment) : 

abolition  of  useless,  900. 

arms,  distribution  of,  901, 904, 1279-1285. 

clerks,  897. 

employees  at  armories,  896-898. 

enticing  away  of  'workmen,  902. 

establishment,  896. 

inspectors,  897,  898. 

inventions,  money  not  to  be  expended  in  per- 
fecting, 908. 

issues  of  arms,  etc.,  904,  912a,  1279-1282. 

jury  duty,  exemption  of  employees,  905. 

manufacture  of  magazine  arms,  910-913. 

master  armorer,  896, 897,  898. 

military  storekeepers'  bonds,  898. 

misconduct  of  workmen,  903. 

reports  of  expenses,  899. 

royalties  to  officers,  etc.,  prohibited,  907. 

superintendents,  896. 

workmen,  896,  902,  903, 905. 


804 


INDEX. 


Arson,  1496. 

Articles  of  War  (see  Courts-Martial  and  Military 

Tribunals) : 

absence  from  parade,  etc.,  33  A.  "W. 
absence  without  leave,  32  A.  "W. 
accountability  for  arms,  etc.,  10  A.  TV. 
accouterments,  losing,  spoiling,  etc.,  17  A.  W. 
accuser  or  prosecutor,  72,  73  A.  TV. 
accused,  arraignment,  89  A.  TV. 

counsel,  90  A.  TV. 

copy  of  charges,  71  A.  TV. 

entitled  to  copy  of  record,  1 14  A.  TV. 
affirmation,  92  A.  W. 
alarms,  false,  41  A.  TV. 
allowing  duels,  27  A.  TV. 
ammunition,  wasting,  16  A.  "W". 
approval  of  sentences,  104-111 A  W. 
arrest  of  officers,  65  A.  W. 

duration  of,  70, 71  A.  W. 

release,  70, 71  A.  W. 
behavior  of  members,  87  A.  TV. 
branding,  etc.,  98  A.  TV. 
camp,  retainers  to,  63  A.  TV. 
challenges— 

to  duels,  26  A.  W. 

to  members,  88  A.  "W. 

charges,  copy  to  be  furnished  accused,  71  A.  "W. 
civil  authority,  delivery  of  offender  to,  59  A.  W. 
command  when  different  corps  join,  122  A.  TV. 
commanders  not  to  be  interested  in  sale  of  vict- 
uals, etc.,  18  A.  TV. 

commanding  officer,  disrespect  to,  20  A.  "W. 
conduct  prejudical  to  good  order,  etc.,  62  A.  W. 
conduct  unbecoming  an  officer  and  gentleman, 

61  A.  W. 

confinement  of  enlisted  men,  66-70  A.  "W. 
confirmation  of  sentences,  104-111  A.  TV. 
Congress,  disrespectful  words  concerning,  19 

A.  TV. 

contempts  of  court,  86  A.  TV. 
contemptuous  words,  19  A.  W. 
continuances,  93  A.  TV. 
courts  of  inquiry,  116-121  A.  "W". 

authentication  of  proceedings,  120  A.  TV. 

composition,  115  A.  "W. 

constitution,  115  A.  W. 

evidence,  proceedings  as,  121  A.  W. 

oaths  of  members  and  recorder,  117  A.  W. 

opinion,  when  furnished,  119  A.  TV. 

record  as  evidence,  121  A.  TV. 

witnesses,  119  A.  "W. 
cowardice,  42  A.  W". 

crimes  during  war,  insurrection,  etc.,  58  A.  TV. 
damages  to  stores,  15  A.  W. 
death  sentences,  47, 96, 105,  111  A.  "W". 
deceased  officer,  effect*,  125, 127  A.  TV. 
deceased  soldier,  effects,  126, 127  A.  W. 
delivery  of  offender  to  civil  authority,  59  A.  TV. 
depositions,  91  A.  "W. 
desertion,  47-51  A.  W. 

advising,  51  A.  W. 

limitation  in,  103. 

penalty,  47, 48  A.  "W". 

resignation,  49  A.  "W". 
destruction  of  property,  55  A.  W. 
discharges,  4  A.  TV. 


Articles  of  War— Continued, 
discipline — 

conduct  prejudicial  to,  62  A.  TV. 

maintenance  of,  on  march  and  in  quarters.  54, 

55,  56  A.  W. 

dismissal  of  officer,  99, 106, 107,  111  A.  W. 
disrespectful  words,  19,  20  A.  "W. 
disrespect  to  commanding  officer,  20  A.  TV. 
divine  service,  misconduct  at,  52  A.  TV. 
drunkenness  on  duty,  38  A.  "W". 
duels,  26,  27, 28  A.  TV. 
duty,  drunkenness  on,  38  A.  "W. 

hiring,  36  A.  "W. 
embezzlement,  etc.,  60  A.  "W". 
enacting  clause,  sec.  1342  R.  S.,  p.  704. 
enemy,  corresponding  with,  46  A.  "W. 

relieving,  45  A.  TV. 

enlisting  without  discharge,  50  A.  "W. 
enlistments  unlawful,  penalty,  3  A.  "W". 
false  alarms,  41  A.  TV. 
false  certificates,  13  A.  W. 
false  muster,  5, 14  A.  W. 
false  returns,  8  A.  W. 

field-officers    courts    (see   Regimental    Courts- 
Martial),  80,  83  A.  W. 

approval  of  proceedings,  104, 109, 110  A.  W. 

composition,  80  A.  "W. 

constitution,  80  A.  "W". 

jurisdiction,  80, 83  A.  W. 

limits  of  punishment,  p.  704. 

pardon  and  mitigation,  112  A.  TV. 

sentences,  sec.  1342  R.  S.,  p.  704,  and  83  A.  TV. 
flogging,  98  A.  W. 
fraud,  embezzlement,  etc.,  60  A.  W. 
furlough,  11  A.  W. 

garrison  courts-martial  (see  Summary  Courts), 
82  A.  TV. 

approval  of  proceedings,  104, 109  A.  TV. 

behavior  of  members,  87  A.  "W. 

composition,  82  A.  "W. 

constitution,  82  A.  "W. 

judge-advocate,  74,  90  A.  "W". 

jurisdiction,  82, 83  A.  TV. 

limits  of  punishment,  83  A.  "W.,  p.  704. 

oaths,  84, 85  A.  TV. 

pardon  and  mitigation,  112  A.  W. 

sentences,  83  A.  TV.,  p.  704. 
general  courts-martial,  72,  73. 

approval  of  sentences,  104-108  A.  TV. 

behavior  of  members,  87  A.  W. 

challenges,  88  A.  W. 

composition,  75-79  A.  TV. 

confinement  in  penitentiary,  97  A.  W. 

constitution,  72, 73  A.  "W". 

continuances,  93  A.  "W. 

depositions,  91  A.  TV. 

dismissal  of  officers,  99, 105, 106,  111  A.  TV. 

execution  of  sentences,  104-109,  111,  112  A.  TV. 

general    officers,  sentences    respecting,    108 
A.  TV. 

hours  of  session,  94  A.  W. 

inferior  in  rank,  79  A.  TV. 

judge-advocates,  74, 84,  90  A.  TV. 

limits  of  punishment,  p.  704. 

number  of  officers,  75  A.  TV. 

oaths,  84, 85  A.  W. 


INDEX. 


805 


Articles  of  War— Continued, 
general  courts-marshal—  Continued. 

order  of  voting,  95  A.  "W. 

pardon  and  mitigation,  112  A.  "W. 

proceedings,  final  disposition,  113  A.  "W". 

sessions,  94  A.  "W. 

suspension  of  officers'  pay,  101  A.  W. 

voting,  95  A.  "W. 

general  officers,  sentences  respecting,  108  A.  ~\V. 
good  order  on  march,  etc.,  54  A.  "W". 
gratification  or  reward  for  muster,  G  A.  W. 
hiring  duty,  36  A.  "W. 
horses,  losing,  spoiling,  etc.,  17  A.  W. 
hours  of  session,  94  A.  W. 
judge-advocates,  74,  84, 85, 90, 92, 113  A.  W. 
limitation  of  prosecution — 

in  desertion,  103  A.  "W. 

in  general,  103  A.  W. 
limits  of  punishment,  p.  704. 
marines,  when  subject  to,  367. 
marking,  tattooing,  etc.,  98  A.  "W. 
members  of  courts-martial,  75-79  A.  W. 
military  discipline,  conduct  prejudicial  to,  62 

A.W. 

militia  subject  to,  1507, 64  A.  W. 
misbehavior  before  enemy,  42  A.  W. 
muster,  false,  5, 14  A.  W. 
musters,  5,  6,  13,  14,  A.W. 
mutiny,  22,  33  A.  W. 

National  Home,  etc.,  inmates  subject  to,  1769. 
neglect  of  duty,  62  A.  W. 
neglects,  etc.,  prejudicial  to  military  discipline, 

62  A.  W. 

oath  of  enlistment,  2  A.  W. 
oaths,  2,  84,  85,  92  A.  W. 

enlistment,  2  A.  W. 

judge-advocate,  85  A.  "W. 

member,  84  A.  W. 

witness,  92  A.  W. 
oaths,  profane,  53  A.  "W. 
officer  and  gentleman,  conduct  unbecoming,  61 

A.W. 
officers  to  keep  good  order  in  commands,  54 

A.W. 

officers  to  subscribe  to,  1  A.  W. 
officers,  triable  b#  general  courts-martial  only, 

79  A.  W. 

one  mile  from  camp  without  leave,  34  A.  W. 
order  to  be  kept  in  quarters  and  on  the  march, 

54  and  55  A.  W. 

pardon  and  mitigation,  112  A.  W. 
•        penitentiaries- 
confinement  in,  97  A.  W. 

sentences  to,  97  A.  W. 
persons  subject  to — 

Army  of  the  United  States,  1, 2, 64  A.  W. 

inmates  National  Home,  1769. 

inmates  Soldiers'  Home,  1728. 

marines  serving  with  land  forces,  78  A.  W. 

militia,  in  time  of  war,  1507,  64  A.  W. 

persons  serving  with  armies  in  field,  63  A.  W. 

Regular  Army,  1, 2. 

retainers  to  camp,  63  A.  W. 

retired  enlisted  men,  1028,  note. 

retired  officers,  985. 

volunteers,  64  A.  W. 


Articles  of  War— Continued, 
pleas,  89  A.  W. 
President,  contemptuous  or  disrespectful  words 

concerning,  19  A.  W. 
prisoner — 

charges  against,  67  A.  W. 

confinement  of,  66,  67, 68, 69  A.  W. 

escape  of,  69  A.  W. 

receiving  by  provost-marshal,  etc.,  68  A.  W. 

release  of,  69  A.  W. 

report  of,  68  A.  W. 
profane  oaths,  53  A.  W. 
property- 
captured,  9  A.  W. 

returns,  10  A.  W. 
publication  of — 

Articles  of  War,  128  A.  W. 

sentences,  100  A.  W. 
punishment,  limits  of,  p.  704. 
punishments  prohibited,  98  A.  W. 
quarrels,  frays,  etc.,  24  A.  W. 
quarters,  lying  out  of,  31  A.  W. 
quelling  mutiny,  23  A.  W. 
quitting  guard,  40  A.  W. 
rank  of  regular  and  volunteer  officers,  122,  123 

A.W. 
read,  once  in  six  months  to  regiments,  etc.,  128 

A.W. 

records  of  general  courts-martial  forwarded  to 
Judge- Advocate-General,  113  A.  W. 

party  entitled  to  copy,  114  A.  W. 
recruits,  articles  to  be  read  to,  2  A.  W. 
redress  of  wrongs — 

enlisted  men,  30  A.  W. 

officers,  29  A.  W. 

regimental   courts-martial    (see   Field  -  Officers 
Courts),  81  A.  W. 

appeals  from,  30  A.  W. 

approval  of  proceedings,  104, 109  A.  W. 

behavior  of  members,  87  A.  W. 

composition,  81  A.  W. 

constitution,  81  A.  W. 

judge-advocate,  74, 81, 84,  85,  90  A.  W. 

jurisdiction,  81, 83  A.  W. 

limits  of  punishment,  83  A.  W.,  p.  704. 

oaths,  84,  85  A.  W. 

pardon  and  mitigation,  112  A.  W. 

redressing  wrongs,  30  A.  W. 

sentences,  83  A.  W.,  p.  704. 
regimental  returns,  7  A.  W. 
relieving  enemy,  45  A.  W. 
report  of  prisoners,  68  A.  W. 
reproachful  speeches,  25  A.  W. 
retainers  to  camp,  63  A.  W. 
retreat,  failing  to  retire  to  camp  at,  35  A.  W. 
.returns,  false,  8  A.W. 

regimental,  7  A.  W. 
safeguard,  forcing  of,  57  A.  W. 
second  trial  for  same  offense,  102  A.  W. 
sentences,  96-101, 104-112  A.  W. 

approval  and  confirmation,  104-110  A.  W. 

death,  47, 96,  111  A.  W. 

dismissal  of  officer,  99, 107,  111  A.  W. 

flogging,  98  A.  W. 

general  officers,  108  A.  W. 

limits  of,  p.  704. 


806 


INDEX. 


Articles  of  War— Continued, 
sentences— Continued. 

pardon  and  mitigation,  112  A.  W. 

penitentiary,  97  A.  W. 

publication,  100  A.  W. 

suspension  of,  111  A.  "W. 

suspension  of  pay,  etc.,  101  A.  "W. 
sessions,  hours  of,  94  A.  W. 
sleeping  on  post,  39  A.  "W. 
Soldiers'  Home,  1728,  note, 
soldiers  subject  to,  p.  705. 
spies,  sec.  1343  E.  S.,  p.  757. 
standing  mute,  89  A.  W. 
stores  captured,  9  A.  W. 
striking  superior  officer,  21  A.  W. 
surrender,  compelling  of,  43  A.  W. 
suspension  of  officers'  pay,  101  A.  "W. 
suspension  of  sentence,  111  A.  "W. 
troops,  Articles  of  War,  to  be  read  to,  128  A.  W. 
troops,  subject  to  Articles  of  War,  64  A.  W. 
twice  in  jeopardy,  102  A.  W. 
victuals,  sale  of,  commanding  officers  not  to  be 

interested  in,  18  A.  W. 
violence  to  persons  bringing  in  provisions,  56 

A.W. 

voting,  order  of,  95  A.  "W. 
watchword,  disclosure  of,  44  A.  "W". 
witnesses — 

affirmation,  92  A.  W. 

attendance,  1311. 

oath,  92, 118  A.  W. 
wrongs,  redress  of,  29,  30  A.  W. 

officers,  29  A.  W. 

soldiers,  30  A.  "W. 
Artificers  (see  Enlisted  Men) : 
artillery,  1076. 
infantry,  1079. 
ordnance,  868, 902, 903. 

Artificial  Limbs  (see  Medical  Department) : 
allowance,  680, 681. 
apparatus  for  resection,  681,  682. 
attorney's  fees  not  allowed,  685. 
commutation,  680,  682, 684,  685. 
furnished  by  Medical  Department,  680. 
how  obtained,  683. 
renewal,  681, 684. 
transportation,  686, 687. 
Artillery: 

animals,  limit  on  number  of,  1168. 
artificers,  detail  of,  868. 
battery,  1076. 

District  of  Columbia  militia,  1286  (15). 
horses  for,  1167, 1168. 
light  batteries,  1077. 
militia,  1246, 1286. 

number  of  regiments,  436.  . 

organization,  1075-1077. 
regiment,  1075. 

returns  of  strength,  519,  note,  7  A.  "W. 
staff  of  regiment,  1075. 
Artillery  School  at  Fort  Monroe,  Va.,  1142. 
Assessments : 

political,  etc.,  forbidden,  97-101, 128. 
Assignments  of  Pay : 
enlisted  men,  prohibited,  650. 
officers,  611,  note. 


Assistant  Adjutants-General,  516. 
Assistant  Commissary-General  of  Subsistence,  575. 
Assistant  Judge- Advocate-General,  527. 
Assistant  Messengers.     (See  Messengers.) 
Assistant  Quartermasters    (see    Quartermaster's 

Department),  533. 

Assistant  Quartermasters-General,  533. 
Assistant  Secretary  of  War  (see  Secretary  of  War) : 

duties,  63. 

office  of,  63. 

salary,  63. 

Assistant  Surgeons  (see  Medical  Department),  662. 
Assistant  Surgeons-General,  662,  663. 
Assistant  Treasurers  (see  Treasurer  of  the  United 
States) : 

appointment,  226. 

duties,  216-229. 

failure  to  keep  funds  safely,  500. 

mints,  superintendents  of,  to  act  as,  225. 

reports,  221. 

returns  of  checks  outstanding,  221. 
Atlantic  and  Pacific  Railroad,  1560. 
Attorney-General  (see  Department  of  Juatice) : 

counsel  for  Departments,  278,  279. 

Court  of  Claims,  duties  in,  336,  348,  349. 

duties,  271-276. 

examination  of  titles,  272. 

lands,  titles  to,  to  be  examined  by,  271. 

legal  services,  furnishing  of,  278. 

office,  269. 

opinions,  272-275. 

to  heads  of  Executive  Departments,  273,  275. 
to  President,  272. 
to  subordinate  officers,  275. 

printed  opinions,  281. 
periods  covered  by  volumes,  281,  note. 

removal  of  obstructions  to  works  of  river  and 
harbor  improvement,  824. 

Solicitor-General,  270,  276. 

succession  to  office,  270. 

suits,  conduct  of,  276. 

surety  companies,  duties  respecting,  467-475. 

titles  to  land  to  be  examined  by,  272. 
Attorneys: 

pension  cases,  1667-1673. 

powers  of,  196. 

prosecution  of  claims,  196. 
Auditor  for  War  Department: 

duties,  139. 

Auditors  (see  Accounts,  Accountability,  and  Ac- 
counting Officers)  : 

appeal  from,  to  Comptroller,  141. 

certificates  of  differences,  142. 

checks,  lost,  destroyed,  etc.,  163. 

claims,  examination  of,  149,  164,  165. 

decisions,  141,  145. 

differences,  certificates  of,  142. 

discharge  certificates  to  be  returned,  162. 

distress  warrants,  235-249. 

duties,  138-146, 149, 154,  155,  158,  159. 

evidence  in  claim  cases,  213. 

examination  of  claims,  149. 

new  evidence,  143. 

overpayments,  allowance  of,  161. 

reopening  accounts,  143, 156. 

requisitions  for  funds,  duties  respecting,  146, 158. 


INDEX. 


807 


Auditors— Continued, 
suspended  item s,  143. 
transfer  of  duties,  155. 
vouchers  to  be  preserved,  144. 
Badges : 

American  Revolution,  Sons  of,  1010. 
Aztec  Society,  1010. 
corps,  1009. 

Grand  Army  of  the  Republic,  1010. 
Loyal  Legion,  1010. 

Regular  Army  and  Navy  Union,  1011. 
Bakeries,  541, 1223. 
Balls,  Cannon : 

donations  of,  876. 
Bands : 

District  of  Columbia  militia,  1286. 
Military  Academy,  436, 1130-1133. 
Barrack  Furniture,  571,  note. 
Barracks  and  Quarters  (see  Buildings,  Military 

Posts,  and  Quarters) : 
allowances,  571, 572. 
assignment  of,  571. 
construction,  569, 570. 
furniture,  571,  note, 
rooms,  571,  note. 

Battalion  of  Engineers.     (See  Engineer  Depart- 
ment.) 
Bedding: 

allowances,  559,  note. 
Beer,  Sale  of: 

when  authorized  and  forbidden,  1225. 
Behavior  of  Members  of  Court-Martial,  87  A.  W. 
Bidders.    (See  Contracts  and  Purchases.) 
Bidders'  Bond,  1161. 
Bids.    (See  Contracts  and  Purchases.) 
Biennial  Register,  53. 
Blank  Forms  for  Accounts : 

prescribed  by  Comptroller,  135. 
Board  of  Ordnance  and  Fortification  (see  Ord- 
nance Department) : 
annual  report,  879. 
composition,  877,  878, 884. 
constitution,  877, 878, 884. 
contracts,  866-888. 
duties,  877-890. 
expenditures,  877. 
expenses,  882,  note, 
experiments,  880. 
inventions,  884. 
investigations,  880. 
membership,  877,  878, 884. 
powers,  880,  note. 

preference  for  American  materials,  883. 
proving  ground  at  Sandy  Hook,  881-882. 
purchases,  879-880. 
steel  guns,  contracts  for,  886-888. 
steel  mortars,  887. 
tests,  877, 880-884. 
Boards: 

examining,  459-462,  698-700, 938,  941-943, 946,  947. 
for  purchase  of  horses,  548. 
ordnance  and  fortification,  877-889. 
retiring,  969-976. 
small  arms,  909. 
testing  rifled  cannon,  890. 
testing  machine,  892, 893. 


Boards  of  Examination,  941-943,946-947. 
Bond-aided  Railroads,  552. 
Bonds  (see  Disbursing  Officers) : 
agents,  special,  227. 
by  whom  given,  227, 249, 466. 
custodians  of  funds,  249, 485. 
examination  of,  every  two  years,  515. 
inspection  of,  515. 
proposals,  1161. 

release  of  sureties,  477. 

renewal  of,  515. 

surety  companies,  467-475. 
Book  of  Estimates: 

prepared  in  Treasury  Department,  172-173. 

proceeds  of  sales  to  be  reported  in,  174. 
Bounty  Claims : 

audit  of,  160. 
Bowman  Act,  332-338. 
Breech-loading  Small  Arms,  906, 909-911. 
Brevet  Rank,  995-1003. 
Brevets  (see  Brevet  Rank) : 

assignments  to  duty,  1000. 

commissions,  995, 996,  997, 998. 

date  of  commission,  996, 998. 

conferred  for  what  services,  995,  997. 

honorary,  999. 

Indian  service,  997, 998. 

marine  officers,  359. 

titles,  officers  not  to  be  addressed  by,  1003. 

Tiniforni  not  to  be  worn,  1002. 
Bribery,  510,  511. 

Bridges  Over  Navigable  Waters,  816-819. 
Brigades : 

organization  of,  452. 
Brigadier-Generals : 

aids,  442. 

brevet  assignments,  448. 

command  of,  452. 

number,  436. 
Buildings  (see  Public  Buildings) : 

appropriations  for,  not  to  be  exceeded,  512, 1147. 

construction,  1172, 1218. 
limitation  on,  1216-1218. 

erection  of,  1147, 1218. 

estimates  for  construction  and  repair,  169,  1172. 

furnishing,  1147. 

limitation  on  expenditures  for,  1172, 1216-1218. 

Quartermaster's  Department  to  construct,  1218. 

rented,  report  of,  54. 

repairs,  1147. 
Cadet.    (See  Military  Academy) : 

appointment,  1102-1106. 

pay  of,  on  promotion,  945. 

promotion,  944-945. 
California  Debris  Commission : 

appropriations,  expenditure  of,  786,  787, 788-791. 

California,  funds  contributed  by,  791. 

conference  with  State  commission,  788. 

construction  of  restraining  works,  787-789. 

creation,  763. 

duties,  765-790. 

expenditures,  788-791. 

funds  of  State  Debris  Commission  of  California, 
791. 

hydraulic  mines,  770-787. 

mining,  supervision  of,  767-783. 


808 


INDEX. 


California  Debris  Commission— Continued. 

navigation  of  rivers,  768. 

organization,  763. 

regulations,  764. 

reports,  769. 

Sacramento  River,  works  on,  789. 

San  Joaquin  River,  works  on,  789. 

surveys  of  storage  sites,  767. 

works,  construction  of,  789,  790. 
Canals  (see  River  and  Harbor  Works),  813, 815. 
Candidates  for  Promotion,  948,  949. 
Cannon : 

condemned,  donations  of,  876. 

tests  of,  880,  890. 
Captures: 

colors,  etc.,  collected  in  "War  Department,  68. 

flags,  etc.,  to  be  collected  in  War  Department,  68. 

property,  1228. 

stores,  etc.,  to  be  secured,  9  A.  W. 
Cavalry: 

animals,  limit  on  number  of,  1168. 

artificers  of  ordnance,  detail  of,  808. 

chaplains  to  colored  regiments,  930-936. 

colored,  1073. 

dismounted,  1074. 

horses  for,  1167, 1168. 

militia,  1246. 

number  of  regiments,  436. 

organization,  1071. 

regiment,  1071. 

returns  of  strength,  519,  note;  17  A.  "W. 

staff  of  regiment,  1071. 

troop,  1072. 
Cavalry  and  Light  Artillery  School  at  Port  Rilej , 

Kans.,  1144. 

Cemeteries.    (See  National  Cemeteries.) 
Central  Pacific  Railroad,  1559. 
Ceremony : 

uniform  on  occasions  of,  1004. 
Certificates  of  Merit,  1008. 
Chairs,  Barrack : 

allowance  of,  571,  note. 

office,  571,  note. 
Challenges : 

to  duels,  26  A.  W. 

to  members  of  courts-martial,  88  A.  AV. 

upbraiding,  etc.,  for  refusing,  28. 
Charges : 

copy  of,  to  be  furnished  accused,  71  A.  W. 
Charts: 

sales  of,  75. 
Chaplains: 

appointment,  930. 

colored  regiments,  930, 932. 

duties,  934, 935,  936. 

instruction,  934. 

Military  Academy,  1085. 


qualifications,  932. 
rank,  931. 

recommendations,  932. 
regimental,  930,  932. 
reports,  935. 
schools,  934. 
Charge  of  Desertion: 
removal  of,  1052-1065. 


Charges.    (See  Courts- Martial.) 
Chattanooga.      (See    Chickamauga   and    Chatta- 
nooga National  Military  Park. ) 
Checks  (see  Treasury  Department) : 

bonds  for  duplicate,  514. 

deceased  disbursing  officer,  514. 

destroyed,  514. 

duplicate,  in  lieu  of  lost  checks,  514. 

limitation  on  amount  of  duplicate,  514. 

lost,  issue  of  duplicates,  163,  514. 

outstanding,  219. 

payment  of,  219, 252. 

presentation  of,  regulations  for,  252. 

refusal  to  pay  on  presentation,  506. 

regulations  respecting  duplicate,  514. 
presentation,  etc.,  252. 

stolen,  514. 
Chicago  Harhor: 

anchorage  grounds,  848, 849. 

Chickamauga  and  Chattanooga  National  Military 
Park: 

acquisition  of  lands,  1784, 1785, 1794-1798. 

battle  lines,  location  and  marking,  1783,  1788- 
1790, 1793, 1795, 1796-1799. 

cannon,  etc.,  for  monuments,  1795. 

Commission,  1787-1789. 

Commissioners,  1787-1790,  1793-1799. 

condemnation  of  lands,  1784,  1785,  1794. 

defacing  monuments,  etc.,  1792. 

disbursing  officer,  1795. 

establishment  of  park,  1783. 

injury  to  monuments,  1792. 

jurisdiction  over  lands,  1783-1787. 

lands,  1784,  1785,  1794,  1795,  1796-1798. 

leases,  1786,  1795. 

limits,  1783,  1784,  1794,  1796,  1797, 1798. 

lines  of  battle,  marking,  1783,  1788-1790,  1793, 
1795-1799. 

location  of  monuments,  1790-1799. 

maneuvers,  use  of  park  for,  1781,  1782. 

maps,  1793,  1795-1798. 

Regular  Army,  1789, 1799. 

regulations,  1791,  1799. 

roads,  1783, 1785, 1786, 1788, 1793, 1796, 1797, 1798. 

State  monuments  — 
erection,  1789,  1790,  1792,  1795,  1796,  1797,  1798, 

1799. 

foundations  for,  1798. 
inscriptions  on,  1790,  1799. 
location,  1787,  1790,  1799. 
materials  for  foundations,  etc.,  1798,  1799. 

supervision,  1783, 1785, 1787-1789, 1791. 

tablets,  1788-1790, 1792, 1796-1799. 
Chief  Clerk  of  War  Department: 

distribution  of  clerical  duties,  1(5. 

duties,  8, 15, 1C,  17. 34,  65. 

may  sign  requisitions,  etc.,  8. 

oaths,  administration  of,  34. 

office,  65. 

reports  of  business,  16. 

salary  64. 

supervision  of  clerical  force,  15. 
Chief  Clerks  of  Executive  Departments  (see  Exec- 
utive Departments) : 

duties,  15. 

oaths,  administration  of,  34. 

supervision  of  clerical  force,  15. 


INDEX. 


809 


Chief  Musicians  (see  Unlisted  Men) : 

artillery,  1075. 

cavalry,  1071. 

infantry,  1078. 

Chiefs  of  Bureau  in  War  Department  (seo  Staff 
Departments) : 

absence  of,  provision  for  successor,  465. 

selection,  455. 

to  act  as  Secretary  of  "War,  11. 
Chief  of  Engineers: 

annual  report,  709, 710,  713, 718. 

appointed  from  corps,  455. 

civil  engineers,  employment  of,  708, 709. 

compensation,  limitation,  739. 

harbor  lines,  establishment  of,  820-822. 

prescribes  form,  dimensions,  number,  etc.,  of 
pontoons,  vehicles,  tools,  etc.,  705. 

public  buildings  and  grounds,  714-720. 

rank,  695. 

use  of  Congressional  Library,  711. 

Washington  Aqueduct,  718,  732-745. 
Chief  of  Ordnance  (see  Ordnance  Department) : 

appointed  from  corps,  455. 

duties,  858-861,  866-869. 

rank,  856. 
Chief  of  Record  and  Pension  Office : 

appointment,  926. 

duties,  926-929. 

rank,  926. 
Chief  Signal  Officer  (seo  Signal  Department) 

appointed  from  corps,  455. 

duties,  913,  917,  918,  922-924. 

rank,  914,  913,  note ;  915. 
Chief  Trumpeter  (see  Enlisted  Men),  1071. 
Christmas  Day.    (See  Holidays.) 
Circuit  Courts : 

concurrent  jurisdiction  with  Court  of  Claims, 

340. 
Citizenship  (see  Naturalization) : 

children,  1358. 

definition,  1357. 

desertion,  forfeits,  1361, 1363. 

draft,  evasion  of,  1363. 

expatriation,  1364. 

forfeiture  of,  1361-1363. 

married  women,  1359. 

protection  of  citizens  abroad,  1365, 1366. 

wife,  1359. 
Civil  Employees  (see  Civil  Service) : 

number  of,  limitation,  — .  30,  3],  553,  554,  f>79, 
note ;  604,  note ;  694,  note ;  p.  309,  note ;  708, 
710. 

medicines,  sales  to,  693. 

Civil  Engineers.     (See  Engineer  Department.) 
Civilian  Employees  (see  Staff  Departments) : 

compensation,  30,  31, 553. 

limitation,  553, 554,  579,  note ;  604,  note ;  694,  note  ; 
708, 710. 

number,  553,  554. 

quartermaster's  department,  553, 554. 
Civil  Eights  (see  Force,  Employment  of) : 

deprivation  of,  remedy,  1536-1548. 

equal  rights  under  law,  1536. 

force,  employment  of,  1548. 

peonage  abolished,  1549, 1550. 

rights  of  citizens,  1537. 
persons  to  trade,  etc.,  1536. 


Civil  Service: 

admissions  to,  regulated  by  President,  83. 

applications  for  examination,  88, 102, 103. 

appointments  to,  notice  of,  88. 

apportionment  of  appointments,  88. 

assessments,  political,  forbidden,  97. 

boards  of  examiners,  89, 117. 

certificate  of  residence,  102, 103. 

classification  of  employees,  92,  93. 

Commissioners,  number,  appointment,  etc,  87. 

competitive  examinations,  88. 

Congress,  recommendation  of  Members,  96. 

contributions,  political,  forbidden,  88,  98. 

customs  service,  92. 

employees,  classification,  92,  93. 

examinations,  88,  93. 

examiners,  89. 

family,  two  members  eligible,  95. 

frauds  by  employees,  91. 

intoxicating  liquors,  use  of,  94. 

investigations,  88. 

noncompetitive  examinations,  88. 

notification  of  appointments,  88. 

oaths  of  office,  104-108. 

political  assessments  forbidden,  97. 

post-office,  classification.,  92. 

preference  to  discharged  soldiers  and  sailors,  84, 

93. 

probation  of  employees,  88. 
promotions,  examinations  for,  93. 

for  political  contributions  forbidden,  99; 
reductions  for  withholding  political  contribu- 
tions forbidden,  99. 
regulations  of  President,. pp.  35-45,  note. 

for  War  Department,  p.  45,  note. 

to  be  made  by  Commission,  88. 
removals,  notice  of,  to  be  given  to,  88. 
residence,  to  be  stated  in  application,  102-103. 
resignations,  notice  of,  to  be  given  to,  88. 
soliciting  contributions  forbidden,  98. 
transfers,  notice  of,  to  be  given,  88. 
Treasury,  classification,  92. 
vacancies,  how  filled,  88. 
Civil  Service  Commission  (see  Civil  Service)  -. 
annual  report,  88. 
chief  examiner,  89. 
Commission,  constitution,  87. 
Commissioners,  appointment,  87. 

duties,  88. 

expenses,  87. 

removal,  87. 

salary, 87. 
employees,  89. 
examinations,  88, 93. 
examiners,  89. 
offices,  etc.,  90. 
probation  of  employees,  88. 
report,  88. 
rooms,  90. 
secretary,  89. 

Claims  (see  Accounting  Officers,  Treasury  Depart- 
ment, and  Court  of  Claim*) : 
accounting  officers,  jurisdiction,  215. 
against  United  States,  settled  in  Treasury,  130. 
assignments  of,  196. 
compromise  of,  189. 


810 


INDEX. 


Claims— Continued. 

Department  of  Justice  to  prosecute,  204. 
Court  of,  298-353. 

disloyalty  a  bar  to  prosecution  of,  200. 
evidence  before  auditors,  213. 
Executive  Departments,  38-44. 
false,  penalty,  202. 
horses,  captured,  209. 

condemned,  210. 

limitation  on  claims  for,  214. 

lost,  207,  212, 215. 

minors,  claims  for,  211. 
moieties,  205. 

officers  not  to  be  interested  in,  509. 
powers  of  attorney,  196. 
property  lost  in  military  service,  208, 215. 
purchase  on  execution,  190. 
quartermaster  stores,  164,  note, 
set  off,  197. 
settlement  of,  130. 
subsistence,  164,  note ;  165. 
suits  for  recovery,  jurisdiction,  203. 

limitation  on,  206. 
transfers,  196. 

volunteers,  drilling,  organizing,  etc.,  201. 
Classified  Service.    (See  Civil  Service.) 
Clerical  Services.     (See  Clerks.) 
Clerks,  Executive  Departments  (see  Civil  Service) : 
absence  with  leave,  19. 
administration  of  oaths  to,  free,  33. 
annual  leave,  19. 

appointments,  21-23, 30, 83, 84, 88-103. 
apportionment,  30,  88. 
below  fair  standard  of  efficiency,  55. 
Biennial  Register,  53. 
civil-service  law,  83-103. 
classification,  20,  92, 93. 
compensation,  25-31. 
contributions,  political,  forbidden,  88, 97. 
details  of,  limitation,  23,  30. 
distribution  of  duties,  16, 17,  23. 
duties,  16. 

employment  of,  21-23, 83-103. 
examinations  for  appointment,  88, 93. 

promotion,  21,  93. 

expenditures  for,  limitation,  27-31, 179. 
extension  of  leave,  19. 
extra  clerks,  30. 

compensation  forbidden,  29, 30, 113. 

services,  29. 
hours  of  labor,  19. 
lists  for  Biennial  Register,  53. 
number,  limitation  on,  27-31. 
oaths,  administration  of,  33, 34. 

of  office,  34, 104, 105, 106. 
pay  during  absence,  limitation,  19. 
paymasters,  604. 
power  to  administer  oaths,  32. 
preference  in  reduction,  86. 

to  persons  disabled  in  military  service,  84. 
probation,  88. 

reductions  in  classification,  24. 
salaries,  25,  26. 
sick  leave,  19. 

temporary  employment  compensation,  26. 
transfer  to  lower  class,  24. 


Clothing  (see  Quartermaster's  Department) : 

accountability  for,  563-565, 573. 

accounts,  563,  565. 

affidavits  relating  to  lost  books,  etc.,  73. 

allowance  prescribed  by  President,  562. 

altering,  567,  568. 

appropriations  chargeable  with  accounts  of,  657. 

balances,  to  credit  of  soldier,  657. 

cost  of  alterations,  567,  568. 

gratuitous  issues,  565. 

purchases,  561. 

sale,  loaning,  etc.,  forbidden,  574. 
Coin: 

gold  and  silver,  a  tender,  etc.,  193. 
Collectors : 

deposits  of,  228. 

to  act  as  disbursing  agents,  254. 
College  Details  (see  Retired  Officers) : 

accountability  for  public  property,  959. 

bonds  of  college  for  property  issued,  959. 

details,  958-963. 

number,  962. 

ordnance  stores,  959. 

pay,  960,  961. 

qualifications,  962. 

restriction  on  pay  of  retired  officers,  961, 963. 

retired  officers,  958-963. 

tours  of  duty,  four  years,  962. 
Colored  Regiments,  1073, 1080. 

chaplains  for,  930,  932-936. 
Colors,  Flags,  etc. : 

to  be  collected  in  War  Department,  68. 
Command: 

assignments  to,  444, 445, 447-451. 

brevets,  448. 

brigadier-general,  452. 

detachments,  how  determined,  443. 

different  corps  joining,  443. 

engineer  officers,  449. 

major-general,  452. 

medical  officers,  450. 

militia,  445. 

mixed  detachments,  443. 

pay  officers,  451. 

rule  for  exercise  of,  443. 

tactical,  452. 

territorial,  452,  note. 

volunteers,  444, 445. 
Commanding  General: 

command  of,  452,  note. 

may  act  as  Secretary  of  War,  11. 
Commands : 

returns  of,  519,  note. 

Commissary-General  of  Subsistence  (see  Subsist- 
ence Department) : 

appointed  from  corps,  455. 

duties,  575,  note. 

rank,  575. 

Commissary-Sergeants    (see    Subsistence  Depart- 
ment) : 

allowances,  571,  note ;  579. 

appointment,  579. 

duties,  579. 

fuel  allowance,  571,  note. 

number,  579. 


INDEX. 


811 


Commissary-Sergeants— Continued. 

pay  and  allowances,  571,  note;  579, 638,  660. 
qualifications,  579. 
quarters,  571,  note. 

Commissioner  of  Indian  Affairs,  381,  382,  387, 388. 
duties,  382. 
reports,  387, 388. 

Commissioned  Officers  (see  Officers) : 
absence,  950-951. 

pay  during,  621-622, 950, 951. 

with  leave,  950, 951. 

without  leave,  623,  950,  951, 956. 
acting  judge-advocates,  527. 
adjutant-general  of  militia,  District  of  Colum- 
bia, 1286. 

administration  of  oaths  to  postmasters,  259. 
aids,  441, 442. 

allowances,  559,  560,  569-572,  625-629, 882. 
appointment,  937. 
arrest,  1292, 1294, 1295. 
assignments  to  regiments,  939. 
attache's,  629. 

boards  of  examination,  941-943, 946, 948. 
brevets,  995-1003. 
bribery,  510, 511. 
cadets,  promotion  of,  944, 945. 
candidates  for  appointment,  946-949. 
choice  of  quarters,  571,  note, 
civil  employment  prohibited,  954, 988, 989,  990. 

exceptions,  112,  990. 

civil  office,  not  to  be  held  by,  954, 988, 989. 
claims,  not  to  be  interested  in,  509. 
college  details,  958-963. 
command,  403, 444,  note ;  448-451,  987. 
commissions,  940. 
commutation  of  quarters,  625-629. 
conduct  unbecoming,  etc.,  61  A.  W. 
consular  service,  954. 
cooking,  supervision  of,  670. 
courts  of  inquiry,  1338-1344. 
credits  for  longevity  and  retirement,  983. 
cumulative  leave,  951. 
deceased  officers,  993,  994. 
decorations,  1005. 
detail  of,  as  Jndian.agents,  990. 

inspectors,  520,  note. 

light-house  inspectors,  723. 
diplomatic  service,  954. 
discharge  of,  when  supernumerary,  991. 

on  failure  to  pass  examination,  941. 
dismissal,  955, 956;  99, 106, 107,  111  A.  W. 
dismissal  for  desertion,  956. 
dismissed  officer,  cotirt-martial,  957. 
duties  prohibited,  988,  989. 
effects  of  deceased  officers,  993,  994. 
enlisted  men,  promotion  of.  946-949. 
examination  of  enlisted  men  for  promotion,  946- 

949. 

examinations  for  promotion,  938, 941-943. 
examining  boards,  941-943. 
failure  in  examination,  consequences,  941, 942. 
false  muster,  5, 14  A.  W. 
forage  allowance,  559,  560,  571,  note, 
funeral  expenses,  993,  note. 
Indian  agents,  990, 1392, 1393. 
inspectors  of  light-houses,  723. 


Commissioned  Officers— Continued. 

interment  in  national  cemeteries,  1868, 1869. 

leave  of  absence,  950,  951, 957,  note. 

light-house  duty,  723. 

longevity  pay,  614-618. 

medals  of  honor,  1007. 

mileage,  630,  635. 

military  attaches,  629. 

pay,  608-623. 

pay  accounts,  assignment  of,  611,  note. 

payments  to  be  made  monthly,  611. 

promotion,  938, 944,  945. 

promotions,  how  made,  457, 938. 

publication  of  sentence,  100  A.  W. 

purchases  of  subsistence,  587,  588, 589, 590,  591. 

quarters,  allowance  of,  559,  560,  571,  note. 

rank,  443,  note ;  444,  445, 446. 

rank  and  command,  444-446, 122-124  A.  W. 

rates  of  pay,  608. 

reappointment  after  dismissal,  956. 

regular  and  volunteer  on  same  footing,  444,  123 
A.W. 

relative  rank,  446, 447. 

remains,  disposition  of,  993,  note. 

resignation,  953,  954. 

restoration  after  dismissal,  955. 

retired  pay,  619, 960-962,  984. 

retirement,  964-985. 

rule  of  promotion,  457, 458. 

selection  of  quarters,  571,  note. 

servants,  enlisted  men  not  to  be  used,  992. 

sick  leaves,  950. 

stoppages,  636-637. 

subject  to  Articles  of  War,  "p.  704. 

subscribe  to  Articles  of  War,  2  A.  W. 

supernumerary,  discharge  of,  991. 

suspension  of  pay,  101  A.  W. 

tenure  of  office,  956. 

to  keep  good  order  in  commands,  54  A.  W. 

transfers,  939,  952. 

transfers  to  staff,  463, 464. 

travel,  allowances,  G30-635. 

triable  by  general  courts-martial,  1305. 

uniform  of  highest  volunteer  rank,  1004. 

vacancies,  how  filled,  944, 945, 946-949. 

waiting  orders,  950. 

wholly  retired,  when,  975. 

pay,  620. 

Commissioner  of  Pensions.     (See  Pensions.) 
Commissioner  of  the  Land  Office,  376, 377,  378-380. 
Commissions    (see  Appointments   and   Commis- 
sioned Officers) : 

brevet,  995,  996. 

issue  of,  940. 

recorded  where,  940. 

when  delivered,  116. 
Commissions  (Boards): 

restrictions  on  expenditures  for,  178. 
Commutation  of  Quarters : 

allowance,  625. 

attaches  entitled  to,  629. 

rates  of,  626, 627. 

temporary  absence  not  to  affect,  628. 
Commutation  of  Rations: 

rates,  etc.,  595,  note. 
Companies : 

artillery,  1076, 1077. 


812 


INDEX. 


Companie  s— Con  ti  nued. 

cavalry,  1072. 

cooking,  supervision  of,  670. 

infantry,  1079. 

quarters,  571,  note. 

returns,  519,  note. 
Company  Commander: 

clothing  accounts,  73, 562, 565. 
Compensation  of  Officers,  etc. : 

estimates  for,  168. 

rates  of,  608. 

Competency  of  Witnesses,  1345,  note;  1346. 
Comptroller  of  the  Treasury  (see  Accounts  and 
Accounting  Officers) : 

appeals  to,  from  auditors,  141. 

assistant  comptroller,  134. 

blank  forms  for  accounting,  prescribed  by,  135. 

countersigns  requisitions,  146, 480. 

decisions  of,  final  as  to  Executive  Departments, 

136,141,145. 
auditors,  revision  of,  145. 

duties,  134, 135, 136, 137. 

examination  of  auditors'  action,  145. 

forms  for  accounts,  135. 

office,  134. 

requisitions,  action  on,  146, 480. 

salary,  134. 

settlements  of  accounts  may  be  ordered  by,  137. 

suits  to  recover  money,  234,  497. 
Compulsory  Process,  1311,  note. 
Condemnation  of  Lands,  1208,  1209. 
Condemned  Stores: 

sales,  490-494. 
Conduct : 

unbecoming  an  officer  and  gentleman,  61  A.  "W. 
Confinement : 

of  enlisted  men,  1293, 1294-1296;  66-70  A.  W. 

duration  of,  70  A.  W. 
Congress : 

contemptuous  or  disrespectful  words  to,  19  A. 
W. 

renting  of  buildings  in  District  of  Columbia  to 

be  authorized  by,  61. 
Congress,  Members  of: 

contracts,  etc.,  not  to  be  interested  in,  1181-1184 

franking  privilege.  266. 

penalty  envelopes,  60. 

recommendation  of  applicants  for  civil  serv- 
ice, 96. 

soliciting  assessments,  etc.,  97-101. 
Contagious  Diseases: 

gratuitous  issues  of  clothing  in,  565. 
Contempt  of  Court,  1308. 
Consular  Service,  954. 
Contingent  Funds: 

annual  reports,  78. 

limitation  on  expenditure  of,  30, 45, 46. 

newspapers,  46. 

written  orders    of  heads  of  Departments   re- 
quired, 45. 
Contractors  (see  Contracts  and  Purchases)  • 

bonds,  1161, 1197. 

liens  against,  for  labor  and  materials,  1197, 1198. 
Contracts  and  Purchases : 

advertising,  general  rule,  1151. 

American  productions  favored,  883, 1158, 1163. 


Contracts  and  Purchases — Continued. 

animals,  purchases  of,  1167-1171. 

appropriation  not  to  be  exceeded,  176, 177, 512. 
1147. 

artillery  horses,  1167, 1168. 

assignments  prohibited,  1180. 

auditors,  contracts  to  bo  filed  with,  1185. 

awards,  1165. 

bakeries,  1173. 

bonds,  1197. 

bonds  to  accompany  proposals,  11G1. 

building  sites,  1149. 

bunting,  open-market  purchases,  1164. 

cavalry  horses,  1167, 1168. 

clothing,  purchases  of,  1146. 

coal,  purchases  of,  1186, 1187, 1188. 

competition,  1151. 

Congress,  Member  of,  not  to  be  interested  in, 
1181, 1182, 1183, 1184. 

contractors'  bonds,  1197, 1198. 

copies  filed  with  auditors,  1185. 

cumulation  of  bids  in  river  and  harbor  work,  1160. 

domestic  productions  favored,  883, 1158, 1163. 

draft  animals,  1169. 

eight-hour  law,  1193-1196. 

emergency  purchases,  540,  570,  591,  694, 872, 11 51. 
reports  of,  540, 1166, 1171, 1177. 

enlistment,  nature  of,  1012,  note. 

erection  of  buildings,  1147. 

exception  to  rule  in  case  of  clothing,  subsist- 
once,  fuel,  forage,  quarters,  transportation, 
etc.,  1146. 

exchanges,  1174. 

Executive  Departments,  1152, 1153. 

exigency,  1151. 

filing  of  contracts  in  returns  office,  1189-1192. 

forage,  purchases  of,  1146. 

fuel,  inspection  of,  1186, 1187, 1188. 
purchases  of,  1146. 

gardens,  1174. 

general  rule,  1151. 
horses, 1167-1169. 
immediate  delivery,  1151. 
land,  purchases  of,  1148. 
lowest  responsible  bidder,  1165. 

marking  of  supplies,  1178. 

Medical  Department,  694, 1176. 

messes,  1173. 

notice,  1165. 

open-market  purchases,  limit,  1165. 

Ordnance  Department,  1177. 

Pacific  Coast,  advertising,  1158. 

proposals,  etc.,  rules  for,  to  be  made  by  Secretary 

of  War,  1161. 

quarters,  procurement  of,  1146. 
rates  of  advertising,  1155, 1156, 1157. 
reports  of  emergency  purchases,  1166, 1171, 1J77. 
returns  office,  391-394, 1189-1192. 
school  supplies,  1173. 

Secretary  of  "War,  supervision  of,  66,  69-71, 1145. 
separate  bids  required,  1159, 1160. 
sites  for  buildings,  1149. 
stationery,  1179. 
subsistence,  purchases  of,  1146. 
subsistence  supplies,  1175. 

supplies  for  Quartermaster's  and  Subsistence 
Departments,  1165. 


INDEX. 


813 


Contracts  and  Purchases— Continued. 

transfers  prohibited,  1180. 

transportation,  procurement  of,  1146. 

unauthorized,  prohibited,  1146. 

voluntary  services,  acceptance  of,  prohibited, 
1150. 

written  contracts,  1189. 
Contributions : 

political,  etc.,  56, 97-101, 128. 

political  contributions,  etc.,  prohibited,  97-101. 

requesting,  etc.,  prohibited,  56,  97-101. 
Conventions: 

Geneva,  pp.  759-775. 

Mexico,  pp.  776-779. 
Conversion : 

fraudulent,  penalty,  499, 501,  507. 
Cooking  for  Enlisted  Men : 

supervision  of,  670. 
Copyists  (see  Clerks) : 

salary,  25, 271. 
Corporals  (see  Enlisted  Men) : 

artillery,  1076, 1077. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 

ordnance,  867. 
Corporations: 

agents  of,  not  to  act  for  United  States  in  deal- 
ings with,  126. 

surety,  as  bondsmen,  467-475,  515. 
Corps  Badges.    (See  Badges.) 
Corps  of  Engineers.     (See  Engineer  Department.) 
Corresponding  vdth  the  Enemy,  46  A.  W. 
Counsel: 

how  obtained,  273,  278,  279. 
Counterfeit  Money : 

disposal  of,  5^3. 

stamping,  513. 
Counsel  for  Executive  Departments: 

to  be  furnished  by  Department  of  Justice,  278. 
Court  of  Claims  (see  Claims) : 

ad  verse  judgments,  348. 

aliens  may  sue  in,  307. 

allegiance  of  claimant,  312. 

appeals,  347. 

Attorney-General  to  conduct  defense,  336. 

Bowman  Act,  332-338. 

captured  property,  298. 

circuit  courts,  concurrent  jurisdiction,  340. 

claimant — 
allegiance  of,  312. 
as  witness,  346. 
examination  of,  318. 
fraud  of,  effects,  324. 
oath  of,  310. 

claims — 

referred  by  Congress,  332. 
under  Bowman  Act,  351. 
transmitted  by  Congress,  299. 

clerk  may  administer  oaths,  310. 

commissioner  to  take  testimony,  314. 

competency  of  witnesses,  317, 318, 337,  346. 

contempts,  309. 

contracts,  298. 

costs,  353. 

decrees,  paymasters'  claims,  301. 


Court  of  Claims— Continued, 
departmental  cases,  302, 350. 

information  in,  315. 

judgments,  304. 

procedure,  303. 

disloyalty  of  claimant,  effects,  312. 
district  courts,  concurrent  jurisdiction,  340. 
evidence  from  Executive  Departments,  42, 315. 
Executive  Departments,  claims  may  be  referred 

by,  302, 333, 350. 
express  contracts.  298,  note, 
fraud,  324. 

implied  contracts,  298,  note, 
interest,  328, 329. 

judges  may  administer  oaths,  310. 
judgments  a  bar,  331. 

enforcement,  300. 

full  discharge,  330. 

interest,  328, 329. 

payment,  327. 
jurisdiction,  298, 339,  341-342. 

concurrent,  circuit,  and  district  courts,  340, 
limitation  on,  305,  306, 308,  334. 
loyalty,  burden  of  proof,  313.    . 

proof  of,  335. 
new  trial,  325,  326. 
oaths  in,  how  administered,  310. 
opinions  in  writing,  345. 
paymasters'  cases,  298, 301. 
payment  of  judgments,  327. 
petition  of  claimants,  311, 343, 344. 
private  claims,  298. 
procedure,  309,  342. 
regulations,  298. 
release  from  bond,  341. 
reports  to  Congress,  339. 
rules  of  procedure,  309. 
service  of  process,  344. 
set-offs,  298. 

supplies,  claims  for,  335. 
testimony,  commissioners,  314. 

when  not  taken,  316. 

where  taken,  319. 
Tucker  Act,  339-353. 


claimant  as,  318. 

color  not  to  exclude,  317. 

competency,  317, 337, 346. 

cross-examination,  321. 

fees,  323. 

how  sworn,  322. 
writs  of  error,  347. 

Court  of  Private  Land  Claims,  380,  note. 
Courts-Martial  (see  Articles  of  War) : 
accused  as  witness,  1346. 
accuser,  convening  officer  as,  1299. 
approval  of  proceedings,  1314-1321. 
arrest,  1292, 1294, 1295. 
charges,  1293,  note, 
allegations  of  time  and  place,  1293,  note. 

amendment  of,  1293,  note. 

convictions,  statement  of,  1293,  note. 

double  charges,  1293,  note. 

enlistments,  statement  of,  1293,  note. 

framing,  1293,  note. 

forms  of,  1293,  note. 


814 


INDEX. 


Courts-Martial—Continued. 

allegations  of  time  and  place— Continued, 
list  of  witnesses,  1293,  note, 
multiplication  of,  1293,  note, 
preferring,  1293,  note, 
reference  for  trial,  1293,  note, 
specifications,  1293,  note, 
who  may  prefer,  1293,  note, 
withdrawal,  1293,  note, 
charges  and  specifications,  1293,  note, 
closed  sessions,  1310. 
commutation  of  sentence,  1321,  note, 
competency  of  witnesses,  1345,  note ;  1346. 
composition,  1299-1304, 1323, 1325, 1327,1329, 1331 
confinement  of  enlisted  men,  etc.,  1293-1296. 
commitment,  1296. 
escape  of  prisoner,  1298. 
provost-marshal,  refusal  to  receive  prisoner, 

1296. 

release  of  prisoners,  1298. 
reports  of  prisoners,  1296-1297. 
constitution,  1299, 1300, 1309, 1323, 1325, 1327, 1329 

1331. 

contempts,  130& 
actual,  1308. 
constructive,  1308,  note, 
courts  of  inquiry,  1308,  note, 
penalty,  1308. 
procedure,  1308,  note, 
what  constitutes,  1308. 

convening  officer  as  accuser,  etc,  1299,  note, 
court  of  inquiry,   record  of,   when  evidence, 

1344. 

criminating  questions,  1346,  note, 
desertion,  limitation  on  trials  for,  1337. 
destruction  of  records  of  minor  courts,  532. 
disposition  of  records,  532, 1313. 
disrespect  in  presence  of,  1308. 
documentary  evidence,  1347-1356. 
escape  of  prisoner,  1298. 
evidence  (see  Witnesses)— 
accused  may  testify,  1346. 
criminating  questions,  1346,  note, 
documentary,  1347-1356. 
oath, 1345. 
rules,  1346,  note. 

execution  of  sentence,  1314-1319. 
field-officers   courts    (see    Regimental    Courts- 
Martial)— 

approval  of  sentence,  1314, 1319, 1326. 
brigade  commander,  1326. 
composition,  1325. 
constitution,  1325. 
execution  of  sentence,  1314, 1319. 
jurisdiction,  1325, 1328. 
mitigation,  1321. 
pardon,  1321. 
post  commander,  1326. 
review  of  proceedings,  1326. 
garrison    courts  (see   General    and    Summary 

Courts-Martial)— 
commutation,  1321. 
constitution,  1327. 
execution  of  sentence,  1314, 1319. 
jurisdiction,  1327, 1328, 1332. 
limitation  on  jurisdiction,  1328. 
pardon,  1321. 


Courts-Martial — Continued, 
garrison  courts — Continued. 

review,  1314, 1321. 

sentence,  1328. 

summary  courts,  1329. 
general  courts-martial — 

appeals  to,  from  regimental  courts,  1324. 

approval  of  proceedings,  1314. 

composition,  1301-1304. 

constitution,  1299. 1300. 

convening  officer  as  accuser,  etc.,  1299. 

division  commander,  1300. 

evidence,  1345-1356. 

juniors  in  rank  not  to  compose  court,  1305. 

jurisdiction,  1305-1307. 

marines,  1304. 

militia  and  volunteers,  1303, 1307. 

oaths,  1345, 84,  85,  and  94  A.  W. 

officers  triable  by,  1305. 

record, 1313. 

President  as  convening  officer,  1299,  note,  1300. 

prosecutor  as  convening  officer,  1300. 

rank  of  members,  1305. 

retainers  to  camp,  1306. 

review,  1314-1321. 

separate  brigades,  1299. 

who  may  appoint,  1299, 1300. 
jeopardy,  twice  in,  1335. 
j  udge-advocates— 

appointment,  1309. 

arguments,  1310,  note. 

attendance  of  witnesses,  1311. 

authentication  of  record,  1313,  notes. 

civilian  as,  1309,  note. 

compulsory  process,  issue  of,  1311. 

duties,  1309,  note ;  1310,  note ;  1311-1313. 

form  of  process,  1311. 

interpreters,  1312,  note. 

legal  advice,  1310,  note. 

presumption  of  good  faith,  1311,  note. 

record,  1313,  notes. 

relief,  1309,  note. 

reporters,  1312. 

testimony  of,  1310,  note. 

withdrawal  from  closed  court,  1310. 

witnesses,  compulsory  process,  1311,  note, 
jurisdiction,  1305-1307, 1323-1332. 
limits  of  punishment,  p.  704. 
militia,  composition  ofcourts,  1303. 
preservation  of  records,  1313. 
prisoners,  confinement  of,  reports,  1296, 1297. 
prosecutor,  convening  officer  as,  1299. 
record — 

contents  of,  1313,  notes, 
disposition  of,  532, 1313,  notes, 
minor  courts,  disposition  of,  532. 
party  entitled  to  copy,  1322. 
preparation,  1313  notes, 
preservation,  1313. 
redress  of  wrongs — 
unlisted  men,  1324. 
officers,  29  A.  W. 
release  of  prisoner,  1298. 

regimental  courts  (see  Field-Officers  Courts)— 
appeals  from,  1324. 
approval  of  sentence,  1314, 1319. 
composition,  1323. 


INDEX. 


815 


Courts-Martial—Continued. 

regimental  courts— Continued, 
confirmation  of  sentence,  1314, 1319. 
constitution,  1323. 

execution  of  sentence,  1314-1319, 1321. 
jurisdiction,  1323, 1324, 1328, 1332. 
limitation  on  jurisdiction,  1325, 1328, 1329. 
redress  of  wrongs,  1324. 
reporter,  1312. 
retainers  to  camp,  1306. 
reviewing  authority,  1314-1321. 
approval  of  proceedings,  1314. 
commutation,  1321,  notes, 
confirmation,  1314-1319. 
execution  of  sentence,  1314-1319. 
mitigation,  1321,  notes, 
pardon,  1321,  notes, 
review,  1314. 

sentence,  approval  of,  1314. 
rules  of  evidence,  1346,  note, 
second  trial  for  same  offense  prohibited,  1335. 
sentence — 
approval,  1314-1321. 
commutation  of,  1321,  notes, 
confirmation,  1314-1321. 
dismissal,  1316, 1317. 
execution,  1314-1319. 
general  officers,  1318. 
mitigation,  1321. 
pardon,  1321. 
suspension  of,  1320. 
statutes  of  limitation,  1336, 1337. 

summary  courts  (see  Garrison  Courts) 

approval,  1329, 1330. 
cases  tried,  reports,  1333. 
composition,  1329, 1331. 
docket,  1329. 

execution  of  sentence,  1329. 
jurisdiction,  1323, 1327-1329, 1332. 
mitigation,  1330. 
oaths,  1329. 

objections  to  hearing,  1332. 
procedure,  1329. 
punishments,  limits  of,  1334. 
record, 1329, 1333. 
remission,  1330. 
reports,  1333. 

requests  for  court-martial,  1332. 
specific  penalties,  1334. 
twice  in  jeopardy,  1335. 
witnesses — 
accused  as,  1346. 
attachment,  1311. 
attendance,  how  secured,  1311. 
competency,  1345,  note, 
compulsory  process,  1311. 
service  of  summons,  1311,  note, 
volunteers,  composition  of  courts,  1303. 
Courts  of  Inquiry  (115-121  A.  W.) : 
composition,  1339. 
constitution,  1338. 
evidence,  1341, 1344. 
merits,  opinion  on,  when  given,  1342. 
oath, 1340. 

opinions,  when  given,  1342. 

ordered  by  commanding  officers  only  on  request 
of  officer  or  soldier,  1338. 


Courts  of  Inquiry-Continued. 
President,  power  of,  to  convene,  1338. 
procedure,  1340-1343. 
record,  1343. 

as  evidence,  1344. 
recorder,  1340, 1341. 
witnesses,  1341. 

Courts  of  the  United  States.    (See  Court  of  Claims, 
Department  of  Justice,  and  Habeas  Corpus.) 
Cowardice,  42  A.  W. 
Cramptons  Gap : 

marking  lines,  etc.,  1829. 
Credit  Sales.     (See  Subsistence  Department.) 
Crimes  (see  Articles  of  War  and  Courts- Martial) : 
bribery,  510,  511. 
criminal  correspondence,  1590. 
deposits  of  money,  failure  to  make,  499. 
during  war,  rebellion,  etc.,  58  A.  W. 
embezzlement,  499,  508. 
frauds,  etc.,  60  A,  W. 
officer,  being  interested  in  claim,  509. 
to  prejudice  of  good  order  and  military  disci- 
pline, 62  A.  W. 

Cumulative  Leaves  (see  Leaves  of  Absence),  951. 
Customs  Service: 

classification,  92. 

Damaged  Property.  (See  Property  Accountability.) 
Damage  to  Stores : 
deduction  for,  1234, 1235. 
penalty,  1235, 15  A.  W. 
Debts  Due  by  or  to  the  United  States: 
debtors,  discharge  of,  191, 192. 
executors,  liability  of,  185. 
poor  debtors,  discharge  of,  191, 192. 
priority  of,  184. 
recovery  of,  140. 
sureties,  priority  of,  186. 
Deceased  Officers: 
effects  of,  993, 994. 

interment  in  national  cemeteries,  1868, 1869. 
orphans,  preference  to,  24. 
Deceased  Soldiers : 
effects  of,  1069, 1070. 

interment  in  national  cemeteries,  1868, 1869. 
orphans  of,  preference  to,  24. 
Decisions  of— 

accounting  officers,  141,  143, 145. 
'Jomptroller,  136. 
Decoration  Day  (see  Holidays) : 

a  holiday,  36. 
Decorations  (see  Foreign  Decorations) : 

foreign,  wearing  of,  etc.,  1005, 1006. 
Deficiency  of  Property.     (See  Property  Account- 
ability.) 
Delivery  of  Official  Letters: 

free,  264-267. 

Department  Commanders : 
assignments  of,  452,  note. 

courts-martial,  convening  of,  1299, 1300,  72  A.W. 
headquarters  of,  453, 454. 

supervision  of  telegraphic  constructions,  71,  924. 
Department  of   Justice.      (See  Attorney -General 

and  Justice,  Department  of.) 
Departments,  Military: 
assignments  to  command,  452,  note, 
commanders  of,  452,  note. 


816 


INDEX. 


Departments,  Military— Continued, 
headquarters  of,  453,  454. 
records  of  minor  courts,  532. 
staff  of,  452,  note. 
Depositions  (91, 92  A.  W.) : 

in  claim  cases,  38. 
Depositaries  (see  Depositories) : 
checks,  duplicate,  514. 
duties,  221-225,  485. 
failure  to  keep  funds,  500. 
lost  checks,  514. 

receiving  money  unlawfully,  508. 
reports,  221. 
Depositories: 
deposits  in,  228, 229. 
reports,  221. 
transfers,  486. 
Deposits  of  Enlisted  Men: 
amount,  654. 

appropriation  from  which  paid,  657." 
books,  654. 
forfeiture  of,  654. 
interest  on,  655. 
payable  at  discharge,  654, 655. 
Deposits  of  Refuse,  etc.,  in  Navigable  Waters, 

826-828. 

unlawful,  penalty,  499. 
Deputy  Commissary-General,  575. 
Deputy  Judge-Advocate-General,  527. 
Deputy  Quartermasters-General,  533. 
Deputy  Surgeons-General,  662, 663. 
Deserters  (see  Desertion) : 
apprehension,  1048, 1049. 
arrest,  1048, 1049. 

civil  officers  may  arrest,  1048, 1049. 
delivery,  1050. 
deposits  forfeited  by,  1044. 
enlistment  forbidden,  1042, 1043. 
expenses  of  apprehension,  1048,  note, 
forfeitures,  1037-1044. 
payment  of  reward,  1048,  note, 
release,  1066,  note, 
reward,  1048,  note;  1050. 
securing,  1050. 

to  serve  full  term,  1037, 48  A.  W. 
Desertion  (see  Deserters) : 
advising,  penalty,  1045, 51  A.  W. 
avoidiug  draft,  1040. 
bounty  land,  1041. 
charges  of,  removal,  1052-1066. 
citizenship  forfeited,  1038. 
definition,  1036,  note, 
dismissal  of  officer  for,  956. 
enlistment  after,  1042, 1043. 
enlisting  without  discharge,  50  A.  W. 
forfeitures,  1037-1044. 
limitation  on  trials  for,  1066, 1337. 
penalty,  1036. 
persuading,  penalty,  1045. 
removal  of  charge,  1052-1066. 
resignation,  when  considered  as,  49  A.  W. 
statute  of  limitations,  1066, 1337. 
statutory  penalties,  1037-1044. 


Destruction,  etc.,  of  Property,  55  A.  W. 
Detachments : 

command  of,  443. 

Details  to  Colleges.     (See  College  Details.) 
[Diplomatic  Service : 
officers  not  eligible  to,  954. 
Usability.    (See  Pensions,   Retired  Officers,  and 

Soldiers'  Home.) 
Disbursements  (see  Accounts) : 
accounts,  487-489. 
advances  prohibited,  481. 
compensation,  restriction  on,  114, 696. 
deposits,  484, 486. 
exchanges  prohibited,  482. 
fiscal  year,  489. 
funds  for,  how  obtained,  480. 
inspection  of,  478. 
loans  prohibited,  485. 
moneys,  how  kept,  485. 
National  Homes,  524. 
premiums,  483. 

Disbursing  Agents  (see  Disbursing  Officers) : 
appointment,  255. 
collectors  to  act  as,  254. 
compensation,  254, 256. 
expenses,  253. 

Disbursing  Clerks  (see  Disbursing  Officers) : 
appointment,  18. 
bonds,  18. 

contingent  funds,  45-47. 
duties,  18. 
salary,  18. 
Disbursing  Officers  (see  Accounts  and  Accounting 

Officers) : 

accounts,  rendition  of,  232, 495, 496. 
advances  forbidden, 481. 
application  of  funds,  488-489. 
bonds,  466-475, 515, 605. 
examination  of,  515. 
inspection,  515. 
renewal,  515, 605. 
bribery,  510,  511. 
checks,  219, 252, 486, 51 4. 
claims,  not  to  be  interested  in,  509. 
conversion,  evidence  of,  499, 501, 507. 

penalty,  499. 

deceased,  duplicate  checks  of,  514. 
deficiency  in  accounts,  sureties,  476. 
delinquent,  report  of,  148. 
disbursing  duty  on  fortifications,  696. 
distress  warrants,  235-249. 
duplicate  checks,  514. 

duties  in  respect  to  the  use  of  funds,  249, 480-489. 
embezzlement,  499-503. 
entries  of  receipts  and  transfers,  487. 
examination  of  bonds,  515. 
exceeding  appropriations,  512. 
exchanges  of  funds  restricted,  482. 
expenditures  on  commissions,  etc.,  178. 
extra  pay  for  disbursements  forbidden,  114, 696. 
failure  to  account,  243. 
fraudulent  conversion,  499,  501, 507. 
funds  to  be  deposited,  484. 
inspection  of  accounts,  etc.,  478 


INDEX. 


817 


Disbursing  Officers— Continued. 

loaning  public  funds,  penalty,  485, 499,  501, 508. 

lost  checks,  514. 

misapplication,  499. 

monthly  accounts  to  be  rendered,  232. 

outstanding  accounts,  220. 

refusal  to  pay  warrants,  drafts,  etc.,  506. 

renewal  of  bonds,  515. 

sureties,  inspection  of,  515. 

surety  company  as  surety,  467-475. 

withdrawing  money,  penalty,  499. 
Discharged  Soldiers : 

preference  to,  in  reductions,  24. 
Discharge  of  Enlisted  Men  (4  A.  W.) : 

certificates  of,  72, 1033-1035. 

disability,  1031,  note. 

dishonorable,  1031,  note. 

evidence  of,  to  be  returned,  162, 1035. 

forms  of,  1031,  note. 

honorable,  1031,  note;  1060. 

loss  of,  72, 1033-1034. 

power  to  grant,  1031, 1032. 

purchase  of,  1032. 

return  of,  by  accounting  officers,  162, 1035. 

without  honor,  1031,  note. 

written,  to  be  furnished,  1031. 
Discharge  of  Officer : 

on  failure  to  pass  examination,  941,  942. 
Discretionary  Duty,  6,  note. 
Disloyalty  (see  Pensions) : 

a  bar  to  prosecution  of  claims,  164, 165,  209,  312, 
313. 

burden  of  proof,  313. 

definition  of  term,  200. 
Dismissal  of  Officers: 

court-martial  for  dismissed  officer,  957. 

desertion,  956. 

Disobedience  of  Orders,  21  A.  W. 
Disposition  of  Useless  Papers,  82,  note. 

Disrespect  to— 

President,  19  A.  W. 

commanding  officer,  20  A.  "W". 

Congress,  19  A.  "W. 
Distress  Warrants : 

applicable,  to  whom,  244. 

contents,  236. 

conveyance  of  lands,  241. 

execution,  237, 238. 

failure  to  account,  243. 

injunction  to  stay,  246. 

lands,  conveyance  of,  241. 
sales,  240. 

levy  to  be  a  lien,  239. 

postponement  of,  245. 

procedure  in  court,  247. 

rights  of  United  States  reserved,  248. 

surety,  execution  against,  238. 

surplus,  disposal  of,  242. 

Distribution  of  Arms  to  States,  etc.,  1279-1282. 
District  Courts: 

jurisdiction  over  claims,  203. 
District  of  Columbia: 

assistants  to  Engineer  Commissioner,  728, 729. 

1919 53 


District  of  Columbia-Continued. 

Commissioners,  724-727. 
compensation, 725,  726. 
organization,  724-727. 
powers,  724-727, 731. 

deposits  in  harbor,  852-855. 

engineer  assistants,  728, 729. 

Engineer  Commissioner,  724-727. 
assistants,  724, 728, 729. 
rank,  725,  727. 
salary,  725,  726. 

estimates,  730. 

harbor  regulations,  852-855. 

militia,  1286^1288. 
Divine  Service : 

misconduct  at,  52  A.  W. 
Divisions: 

tactical,  organization  of,  452. 

territorial,  452,  note. 
Documentary  Evidence,  1347-1356. 
Domestic  Violence  (see  Force,  Employment  of), 

1501-1504. 
Domestic  Productions,  etc.: 

preference  for,  883, 1158, 1163. 
Donations  of  Cannon,  Balls,  etc.,  876. 
Draft: 

evasion  of,  1363. 
Draft  Animals.    (See  Animalt.) 
\  Drafts  (see  Checks) : 
Draftsmen : 

compensation,  31. 

employment,  28, 31, 710. 
Drawbridges,  817, 819. 
Drunk  on  Duty,  38  A.  W. 
Duels : 

allowing  persons  to  fight,  etc.,  27  A.  W. 

challenges,  26  A.  W. 

seconds,  promoters,  etc.,  27  A.  "W. 

upbraiding,    etc.,    for   refusing   challenge,    28 

A.W. 

Duplicate  Checks,  514. 
Duty: 

hiring  of,  36  A.  W. 

drunk  on,  38  A.  W. 

neglect  of,  62  A.  W. 
Effects  of— 

deceased  officers,  993, 994 ;  125  A.  W. 

soldiers,  1069, 1070 ;  126  A.  W. 
Eight-hour  Law,  1193-1196. 
Elections: 

interference  in,  by  troops,  prohibited,  1551. 
Elective  Franchise,  1551, 1552. 
Eligibility  for  Promotion: 

certificates  of,  948, 949. 
Embezzlement: 

evidence  in,  505. 

offense,  499-504. 

Emergency  Purchases  (see   Contracts  and  Pur- 
chases and  the  Sta/  Departments) : 

in  general,  1150, 1151. 

Medical  Department,  694. 

Ordnance  Department,  872. 
Quartermaster's  Department,  540, 570. 
Subsistence  Department,  540, 591. 
Emergency  Ration,  580,  note, 
amount  of,  to  be  carried  on  person,  580,  note, 


818 


INDEX. 


Emergency  Ration— Continued. 

components,  580,  note. 

issues  of,  580;  note. 
Emoluments  of  Officers : 

to  appear  in  Army  Register,  434. 
Employees  (see  Civil  Service,  Clerks,  and  Civilian 
Employees) : 

administration  of  oaths  by,  32-34,  73, 74. 

appointment,  21, 22, 27-30, 83-88. 

apportionment  of  appointments,  88. 

classification,  92, 93. 

compensation,  26-31. 

contribution  for  political  purposes,  etc.,  forbid- 
den, 88, 97-101. 

detailed,  reports  of,  48. 

efficiency  of,  below  standard,  to  be  reported,  55. 

intoxicating  liquor,  use  of,  94. 

lists  for  Biennial  Register,  53. 

oath  of  office,  34, 104, 105, 106. 

probation  of,  88. 

restrictions  on  appointment,  21, 22,  27,  28, 30,  31, 

salary,  25, 26, 27,  31. 

services,  how  secured,  83-103. 

vacancies,  how  filled,  88. 

Employment  of  Military  Force.    (See  Force,  Em- 
ployment of.) 
Enemy : 

corresponding  with,  46  A.  "W. 

misbehavior  before,  42  A.  W. 

relieving,  45  A.  W. 
Engineer  Battalion  (see  Engineer  Corps) : 

adjutant,  703. 
•    battalion  organization,  701. 

company  organization,  702. 

corporals,  702. 

duties,  704. 

enlisted  men,  701-706. 

establishment,  436. 

fortification  duty,  704. 

instruction  of,  704. 

laborers,  704. 

Military  Academy,  duties  at,  704. 

musicians,  702. 

officers  to  be  detailed,  703. 

organization,  701. 

overseers,  704. 

pontoniers,  instruction  as,  704. 

pontoons,  etc.,  forms  prescribed  by  Chief  Engi- 
neer, 705. 

privates- 
first  class,  702. 
second  class,  702. 

quartermaster,  703. 

quartermaster-sergeant,  701. 

returns,  7  A.  W. 

sappers  and  miners,  instruction  as,704. 

sergeant-major,  701. 

sergeants,  702. 

signal  duty,  706. 

tools,  implements,  etc.,  prescribed  by  Chief  En- 
gineer, 705. 

vehicles,  etc.,  prescribed  by  Chief  Engineer,  705. 
Engineer  Department  (see Fortifications  and  River 
and  Harbor  Works) : 

anchorage  grounds,  848-851. 

annual  reports  to  be  furnished  by  October  1, 713. 


Engineer  Department — Continued, 
battalion  of  engineers,  701-706. 
bridges  over  navigable  waters,  816-819. 
buildings  and  grounds,  714-720. 
canals,  operation  of,  813-315. 
Chief  Engineer- 
annual  reports,  709,713. 

appointed  from  corps,  455. 

civil  engineers,  employment  of,  708-709. 

compensation,  limitation  on,  739. 

harbor  lines,  820-822. 

pontoons,  vehicles,  etc.,  form  and  number  reg- 
ulated by,  705. 

public  buildings  and  grounds,  714-720. 

rank,  695. 

regulates  form,  dimensions,  number,  etc.,  of 
pontoons,  tools,  etc.,  705. 

use  of  Congressional  Library,  711. 

"Washington  Aqueduct,  732-745. 
charts,  sales  of,  75. 
civil  engineers,  708-710. 
clerical  force,  64. 
command,  697. 

Commissioners  of  District  of  Columbia,  724-731. 
deposits  in  navigable  waters,  826-828. 
disbursing  duty,  696. 
District  of  Columbia,  harbor  regulations,  852- 

855. 

draftsmen,  710. 
duties,  695,  note;  697. 

limits  of,  697. 

employment  of  retired  officers,  709,  note, 
establishment  of,  436. 
estimates,  712. 

examinations,  459, 461, 462, 698  -700. 
fortifications,  792,  793. 
harbor  lines,  820-822. 
injuries  to  works,  penalties,  823-830. 
light-house  duty,  721-723. 
mileage  on  land-grant  railroads,  707. 
Mississippi  River  Commission,  713,  747-753. 
Missouri  River  Commission,  713, 759-762. 
navigable  waters  of  the  United  States,  794-805. 
New  York  Harbor,  deposits  in,  835-847. 
obstructions  or  injuries  to  works,  823-830. 
officers  (see  Commissioned  Officers),  695. 

disbursing  duty,  696. 

examinations,  459-462,  698-700. 

examining  boards,  459-462. 

promotions,  457,  458,  699. 

quarters,  etc.,  792,  note. 

transfers  to  line,  464, 697. 
organization,  695. 

public  buildings  and  grounds,  714-720. 
removal  of  wrecks,  etc.,  831-833. 
retired  officers,  employment  of,  709,  note, 
river  and  harbor  works,  794-805. 
secretary  of — 

Light-House  Board,  721. 

Mississippi  River  Commission,  752. 

Missouri  River  Commission,  762. 
signal  duty,  706. 
State,  War  and  Nary  Building: 

superintendent  of,  82. 
sunken  vessels,  obstruction  by,  831,  833. 
Washington  aqueduct,  718,  732-745. 
works  of  river  and  harbor  improvement,  794,805. 


INDEX. 


819 


Engineer  Depot  at  Willets  Point,  N.  ¥.,  1141. 
Enlisted  Men : 

general  provisions  respecting,  1012-1070. 
absence  without  leave,  1051. 
age, 1012-1017. 
allowances — 

clothing,  562-565. 

fuel,  571,  note. 

quarters,  571,  note. 

rations,  580,  586. 

retired  soldiers,  1027. 

Articles  of  War,  subject  to,  p.  704;  2  A.  W. 
artificers- 
artillery,  1076. 

infantry,  1079. 

ordnance,  868. 
artificial  limbs,  680-687. 
assignment  of  pay  prohibited,  650. 
barracks,  571,  note, 
candidates  for  promotion,  946,  949. 
certificate  in  lieu  of  lost  discharge,  72, 1033. 
certificates  of  merit,  1008. 
chief  musicians — 

artillery,  1075. 

cavalry,  1071. 

infantry,  1078. 
citizenship,  1016. 
clothing — 

accounts,  563,  564. 

allowance,  562,  563. 

alterations,  567,  568. 

gratuitous  issues,  565. 

selling,  etc.,  566. 
colored  men,  1073, 1080. 
commissary-sergeants,  579. 
commutation  of  rations,  585,  note, 
confinement,  1293, 1294, 1295, 1296;  66,  67,  68,69, 70 

A.W. 

cooking,  supervision  of,  596, 670. 
corporals- 
artillery,  1076, 1077. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 

ordnance,  867. 

debt,  exemption  from  arrest  for,  1067. 
deceased, 1069, 1070. 
deductions  for  Soldiers'  Home,  1730. 
deposits,  654-657. 
desertion,  1036-1050. 
discharge,  1031-1035. 
dishonorable  discharge,  1031,  note, 
engineers,  701-706. 
enlistment,  1012-1017. 
examinations  for  promotion,  946-949. 
exemption  from  arrest  for  debt,  1067. 
extra-duty  pay,  555-558. 
faithful  service,  1021,  note, 
farriers,  1072. 

fraudulent  enlistment,  1020. 
furloughs,  1028, 1029. 
honest  and  faithful  service,  1021,  note, 
honorable  discharge,  1031, 1034. 
Hospital  Corps,  673-679. 
instructors  of  music,  1071, 1075, 1078. 
interment  in  national  cemeteries,  1868, 1869. 


!  Enlisted  Men— Continued, 
loss  of  discharge,  72, 1033. 
medals  of  honor,  1007. 
minors,  enlistment  of,  1012-1017. 
musicians- 
artillery,  1076. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 
ordnance,  865-868. 
pay,  638-653, 1021-1025. 
pensions,  1594-1710. 
principal  musicians — 

artillery,  1075. 

infantry,  1078. 
privates- 
artillery,  1076. 

cavalry,  1072. 

engineers,  702. 

Hospital  Corps,  673, 677-679. 

infantry,  1079. 

ordnance,  867. 
promotion  of,  946-949. 
purchase  of  discharge,  1032. 

subsistence,  587,  588, 590,  591. 
qualifications  for  enlistment,  1012-1017. 
quartermaster-sergeants — 

artillery,  1075, 1076. 

cavalry,  1071, 1072. 

company,  1072, 1076, 1079. 

engineers,  702. 

infantry,  1078, 1079. 

post,  538. 

regimental,  1071, 1075, 1078. 
quarters,  571,  note, 
rations,  580-586. 
recruits,  credit  at  depots,  651. 
re-enlisted  pay,  643, 1018, 1021-1025. 
remains,  disposition  of,  1070,  note ;  1868, 1869. 
removal  of  charge  of  desertion,  1052-1065. 
retirements,  1026-1027. 

allowances,  1027. 

pay  in,  646-1026. 
saddler  sergeants,  1071. 
sergeant-maj  ors — 

artillery,  1075. 

cavalry,  1071. 

engineers,  701. 

infantry,  1078. 
sergeants — 

artillery,  1076. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 

of  ordnance,  867. 

ordnance,  865, 866. 

signal,  919. 

servants,  not  to  bo  used  as,  992. 
service,  character  of,  determined  by  Secretary 

of  War,  1021,  note. 
Signal  Corps,  919,  921, 922. 
Soldiers'  Home,  642, 1714-1736. 
statute  of  limitations  in  desertion,  1066. 
subject  to  Articles  of  War,  p.  704. 
term  of  enlistment,  1018. 
transfers,  1030,  note. 


820 


INDEX. 


Enlisted  Men— Continued. 

trumpeters,  1072. 

trusses, 688-690. 

working  parties,  555,  558. 

written  discharges,  1031. 
Enlistments  (see  Reenlistments) : 

age,  1012-1017. 

citizenship,  1016. 

contract  of,  nature,  1012,  note ;  1017,  note, 
voidability  of,  1017,  note. 

fraudulent,  1020. 

honest  and  faithful  service,  1018, 1021,  note. 

minors,  1012, 10H,  1015, 1017. 

premium,  1019. 

prohibited, 1013-1016. 

re-enlistment,  1021-1024. 

Secretary  of  "War  to  determine  character  of 
service,  1021,  note. 

term,  1018. 

voidable,  when,  1017,  note. 
Envelopes: 

contracts  for,  by  Post-Office  Department,  268. 

Executive  Departments,  how  supplied,  268. 

penalty,  264,  265. 
Equipments,  etc.,  for  Militia: 

appropriation  for,  1275, 1276-1287. 
Estimates  (see  Appropriations) : 

amounts  outstanding  to  be  included  in,  170. 

Book  of,  172. 

buildings,  169. 

Executive  Departments,  48, 166-174. 

explanations,  166, 169, 170. 

laws,  references  to,  166. 

preparation,  166. 

printing,  167. 

public  works,  169. 

salaries,  168. 

submitted  through  Secretary  of  Treasury,  172. 
Evidence  (see  Witnesses) : 

accused  persons,  1346. 

affirmations,  1345. 

books  in  Executive  Departments,  1347. 

Congress,  extracts  from  journals  of,  1352. 

certification  of  records,  150, 1347-1349. 

consular  documents  aud  records,  1353. 

courts  of  inquiry,  1344. 

criminating  questions,  1346,  note. 

documentary  evidence,  1347-1356. 

documents  in  Executive  Departments,  1347. 

embezzlement,  transcripts  from  books  of  Treas- 
ury, 1356. 

husband  and  wife,  1346,  note. 

laws,  judicial  records  of  States,  1354, 1355. 

laws  of  United  States,  402, 419, 422, 428, 1356. 

oath, 1345. 

papers  in  Executive  Departments,  1347. 

presumptions  as  to  performance  of  duty,  1346, 
note. 

privileged  communications,  1346,  note. 

record  of  court  of  inquiry,  1344. 

records  in  Executive  Departments,  1347. 

returns  office,  copies  of  contracts,  etc.,  as  evi- 
dence, 1351. 

Revised  Statutes,  402. 

rules  of,  1346,  note. 

Solicitor's  Office,  Treasury  Department,  records 
as  evidence,  1348. 


Evidence — Continued. 

States,  legislative  acts,  1354, 1355. 

Treasury,  transcripts  from  books,  1349. 
Examinations : 

appointees  from  civil  life,  942, 943. 

candidates  for  promotion,  946,  949. 

enlisted  men  for  promotion,  946-949. 

failure  to  pass,  941,  942. 

officers  for  promotion,  941-943. 

physical,  941. 
Exceptional  Articles : 

purchases  of,  591. 
Exchange  of  Funds: 

prohibited,  482. 

Exchange  of  Prisoners,  pp.  793-795. 
Exchanges,  Post: 

buildings,  use  of,  1224. 

expenditures  on,  prohibited,  1224. 

transportation,  use  of,  1224. 
Executive  (see  President) : 

appointing  power,  4. 

Cabinet,  2. 

commander  in  chief,  2. 

Departments,  5-61. 

duties,  2,  6. 

force,  use  of,  in  support  of  civil  authority,  1501- 
1593. 

pardons,  2. 

powers,  1,  2,  4. 

term  of  office,  3. 

Executive  Departments  (see  Executive,  Depart- 
ments, and  Secretaries  of  State,  War,  Navy, 
etc.)  : 

absence  with  leave  of  employees,  19. 

adjustment  of  force,  31. 

appropriations  not  to  be  exceeded,  28-31, 488. 

arms  for  protecting  money  and  property,  912a. 

arrears  of  business,  48. 

attorneys,  oaths  by,  198. 

biennial  register  of  clerks,  etc.,  53. 

civil-service  law,  83-103. 

claims,  38-40,  302,  333. 

clerical  force- 
employment,  16,  21,  22,  27-31,  49,  83-103. 
limitation  on,  27, 28-31. 

clerks  and  employees,  15, 16, 20-31, 83-103. 

closing  buildings  as  mark  of  respect,  58. 

contingent  funds,  45-47. 
expenditures,  45-47. 
newspapers,  46. 
reports,  47. 
written  orders  for,  45. 

contracts  of,  not  to  exceed  appropriations,  489. 

counsel,  how  obtained,  41,  43.  278,  279. 

Court  of  Claims,  reference  of  claims  to,  302,  333, 
350. 

detailed  employees,  23, 48. 

dispatch  of  business,  16, 17. 

disposition  of  useless  papers,  82  note. 

draping  of  buildings  in  mourning,  57. 

employees,  how  secured,  83-103. 
limit  on  number,  28. 
not  to  act  as  counsel,  etc.,  44. 

envelopes  for,  how  obtained,  268. 

estimates,  48, 166-173. 

evidence  for  Court  of  Claims,  42, 333. 


INDEX. 


821 


Executive  Departments— Continued, 
expenditures  of,  not  to  exceed  appropriations, 

488. 

newspapers,  46. 
franking  privilege,  264-267. 
hours  of  labor  in,  19. 
inventories,  52. 
investigation  of  claims,  38-44. 
mourning,  draping  of  buildings,  etc.,  57. 
opinions  of  Attorney-General,  273, 274. 
papers,  useless  disposition  of,  82,  note, 
penalty  envelopes  for  replies,  etc.,  60. 

use  of,  264,  265. 
postage  stamps,  59. 
printing  and  binding,  estimates,  167. 
procurement  of  supplies,  1152, 1153. 
prosecution  of  claims,  38-44. 
protection  of  money  and  property,  912a. 
reductions,  how  effected,  24. 
regulations,  6. 
renting  of  buildings,  61. 
reports,  47-55. 
annual,  47-49,  51,  54,  55. 
clerks,  49, 55. 
condition  of  business,  48. 
contingent  fund,  47. 
documents  pertaining  to,  to  go  to  printer  on 

November  1,51. 
efficiency  of  employees,  55. 
period  covered  in,  50, 51. 
rented  buildings,  54. 
rules  for  accounting,  153. 
salaries,  25. 

services,  how  obtained,  83-103. 
use  of  form  in  Revised  Statutes,  5. 
Exemption  of   Enlisted   Men   From  Arrest  for 

Debt,  1067. 

Expatriation.     (See  Citizenship.) 
Expert  Accountant  (see  Inspector- General's  De- 
partment) : 
appointment,  521. 
mileage,  634. 
pay,  521. 

travel  allowances,  634. 
Extradition  (see  Force,  Employment  of) : 
accused,  protection  of,  1574. 
agent,  powers  of,  1575. 
obstructing  agent,  1576. 
protection  of  accused,  1574. 
Extra  Duty  (see  Quartermaster's  Department) : 
artisans,  555, 558. 
clerks,  555, 558. 
details,  555-557. 
laborers,  555,  558. 
mechanics,  555,  558. 
rates  of  pay,  555, 558. 
school  teachers,  555, 558. 
teamsters,  555,  558. 
False  Alarms,  41  A.  W. 
False  Muster,  5, 14  A.  W. 
Farriers.    (See  Enlisted  Men.) 
Fees  of  Witnesses : 
before  military  courts,  1345,  note, 
in  claim  cases,  39. 

Field-Officers  Courts  (see    Military   Tribunals), 
1325, 1326. 


Fiscal  Year  (see  Accounts  and  Accounting  Officers) : 

accounts  to  relate  to,  131. 

appropriations  for  arming  militia,  etc.,  not  to 
lapse,  1283, 1284. 

funds  outstanding  at  close  of,  218. 

limits  of,  131. 

Fishways  in  Biver  and  Harbor  Works,  834. 
Flag  of  the  United  States,  1875, 1876. 
Flags  Collected  in  the  War  Department,  68. 
Forage : 

allowances,  559,  560, 571,  note. 

discrimination  in  issues  forbidden,  560. 

furnished  by  Quartermaster's  Department,  559. 
Force,  Employment  of: 

civil  rights,  enforcement  of,  1548. 

combinations  in  restraint  of  trade,  1557. 

elections,  interference  with  prohibited,  1551,1552. 

extradition,  protection  of  accused,  1574. 

guano  islands,  1584. 

health,  public,  quarantine,  1553. 

how  used,  1562,  note. 

insurgents,  proclamation  to,  1504. 

insurrection,  8. 
against  State,  1501-1503. 
against  United  States,  1501, 1502. 

intercourse,  suspension  of,  1514-1535. 

invasion,  resisting,  1505, 1506. 

mails,  obstruction  of,  1556. 

militia,  employment  of,  1505-1507. 

neutrality  laws,  1569, 1570. 

peonage,  abolition  of,  in  New  Mexico,  1549, 1550. 

posse-comitatus  act,  1562. 

proclamation  to  insurgents,  1504. 

public  lands,  1554-1555. 
felling  timber,  1504. 
resisting  inclosure  of,  1554. 
trespassers,  ejection  of,  1555. 

quarantine,  enforcement  of,  1553. 

removal  of  intruders  from  Indian  reservation, 
1508-1513. 

resisting  inclosure  of  public  lands,  1504. 

restrictions  on  use  of,  1562. 

timber  depredations,  1554. 

treason,  1586-1593. 

trespassers  on  public  lands,  1555. 

trusts,  etc.,  in  restraint  of  trade,  1557. 
Forest  Reservations : 

boundaries  of,  in  California,  1856. 

control,  etc.,  1857. 

establishment,  185G. 

President  may  establish,  1858. 

supervision,  1857. 
Foreign  Decorations : 

acceptance,  1005. 

display  of,  1005. 

tender  of,  channel,  1006. 

wearing  of,  1005. 
Forms  of  Accounts : 

to  be  prescribed  by  Comptroller,  135. 
Fortification  Board.     (See  Board  of  Ordnance  and 

Fortification.) 

Fortifications    (see    Engineer   Department   and 
Board  of  Ordnance  and  Fortification) : 

acquisition  of  lands,  792. 

appropriations  for,  792,  793. 

condemnation  proceedings,  792. 


822 


INDEX. 


Fortifications— Continued . 

contracts  for,  792,  793. 

disbursements,  696. 

expenditures,  limitation  on,  792, 793. 

sites  for,  792. 

supervision,  696. 

Fourth  of  July.     (See  Holidays.) 
Franking  Privilege : 

Members  of  Congress,  266. 

officers  of  the  Army,  264-267. 

official  letters,  264-267. 
Fraudulent  Conversion,  499,  501, 504. 
Fraudulent  Enlistment,  1020. 
Frays,  Disorders,  etc.,  24  A.  W. 
Free  Delivery  of  Official  Letters,  264-267. 
Fuel: 

allowances,  571,  note. 

allowance  of,  to  officers  prohibited,  559. 

inspection  of,  in  District  of  Columbia,  1186-1188. 
Funds  (see  Accounts,  Moneys,  and  Treasury  De- 
partment) : 

accounts  of,  495,  496. 

advances  of,  forbidden,  481. 

conversion,  fraudulent,  499, 501,  504. 

deposit  of,  with  Treasurer,  etc,  484-486. 

embezzlement,  498-508. 

exchange  of,  restricted,  482. 

loaning,  etc.,  forbidden,  485. 

outstanding  three  years,  disposition  of,  220. 

receipts  and  transfers,  486, 487. 

receiving,  unlawfully,  508. 

transfers,  486, 487. 
Funeral  Expenses: 

enlisted  men,  1070,  note. 

officers,  993,  note. 
Furloughs,  1028, 1029;  11  A.  W. 
Furniture  for  Barracks  and  Offices: 

allowance,  571  note. 
Gardens  (see  Military  Posts) : 

expenditures  on,  prohibited,  1224. 
Garrison  Courts-Martial  (see  Courts-Martial)  -. 

sentences  respecting,  108  A.  W. 
General  of  the  Army  (436) : 

office  discontinued,  436. 

retirement,  985. 
General  Officers: 

aids,  442. 

allowances,  559,  571,  note. 

assignments  to  command,  452,  note. 

militia,  1261. 

number,  436. 

pay,  608. 

rank,  436. 

retirement,  965. 
Geneva  Convention: 

additional  articles,  pp.  767-775. 

administrative  service,  p.  764. 

ambulance,  definition,  p.  771. 
neutralization  of,  pp.  764, 770, 771. 

badge,  766. 

belligerents — 

communication,  regulation  of,  p.  773. 
contributions,  exemption  from,  765. 
suspension  of  convention,  p.  775. 

boats,  collecting  wounded,  p.  771. 

brassart,  p.  766. 


Geneva  Convention— Continued, 
communication  by  ships,  etc.,  may  be  inter- 
dicted, p.  773. 
contributions,  p.  771. 
delivery  of  wounded,  condition,  p.  765. 
enforcement,  p.  766. 
evacuations,  direction  of,  p.  765. 

withdrawal  of  property,  p.  764. 
flag,  p.  765. 

governments  to  be  invited  to  accede,  p.  766. 
hospitals,  pp.  764,  770,  771. 

flag,  p.  765. 

neutralization  of,  pp.  763, 764. 

not  to  be  held  by  military  force,  p.  763. 

property,  pp.  763,  764. 

to  be  inviolate,  p.  763. 

inhabitants  of  country  to  be  free,  pp.  764, 765. 
marine,  articles  concerning,  pp.  771, 772. 
medical  staff,  p.  764. 

naval  forces,  articles  concerning,  pp.  771-772. 
neutrality  of  ambulances,  pp.  763,  764, 771. 

boats,  pp.  771,  772. 

cargo,  p.  772. 

equipment,  p.  772. 

hospital  ships,  pp.  772,  773. 

hospitals,  pp.  763, 764. 

houses,  pp.  764,  765. 

inhabitants,  p.  764 . 

merchant  ships,  p.  773. 

persons,  pp.  763,  770,  771,  772. 

property,  p.  763. 

sick,  pp.  763, 772. 

staff,  pp.  764,  772. 

vessels,  pp.  771,  772. 

wounded,  pp.  764,  765, 772. 
neutralization  of  staff  for — 

administration,  p.  764. 

boats,  p.  771. 

chaplains,  pp.  764,  771.  9 

employees,  p.  764. 

hospital  service,  pp.  764, 771. 

medical  service,  pp.  764,  772. 

religious  purposes,  pp.  764, 771. 

ships,  p.  772. 

superintendence,  p.  764. 

transport,  p.  764. 
neutralized  persons,  p.  764. 

salary  to  be  paid,  p.  771. 
officers,  military,  detention  of,  p.  771. 
original  copy  deposited  in  archives  of  Swiss 

confederation,  p.  775. 
parties,  p.  759. 

persons  neutralized,  pp.  763,  764,  770,  771, 772. 
proclamation  of  President,  p.  774,  note, 
property  not  to  be  withdrawn,  pp.  764,  771. 

private  may  be  carried  away,  pp.  764,  771. 
protection  to— 

houses  occupied  by  wounded,  p.  766. 

inhabitants  of  country,  p.  764. 

persons  attending  wounded,  p.  764. 
ratification,  p.  760. 
red  cross — 

arm  badge,  p.  766. 

badge  of  convention,  p.  766. 

flag,  p.  766. 

sailors,  sick  or  wounded,  p.  773. 
salary  of  neutralized  person  s  to  be  secured,  p.  771 . 


INDEX. 


823 


Genera  Convention — Continued, 
ships- 
cargo,  neutralization  of,  p.  773. 

hospital,  p.  774. 

martial  law  to  apply  to  stores,  etc.,  p.  772. 

merchantmen,  p.  773. 

neutralization  of,  pp.  771, 772. 

not  equipped  for  fighting,  p.  772. 
shipwrecked  persons,  p.  772. 
soldiers  incapacitated  for  service  to  be  released, 

p.  765. 
soldiers,  sick  or  wounded,  pp.  764, 773. 

protection  of,  765. 
staff,  protection  of,  by  occupying  forces,  pp.  764, 

771. 

suspension  of  convention,  p.  775. 
transport  service,  p.  764. 
wounded,  cure,  p.  765. 

delivery,  p.  765. 

neutralization,  p.  764. 

not  to  bear  arms  if  released,  p.  765. 

release,  conditions  of.  p.  765. 
Gettysburg  National  Park: 
acquisition  of  lands,  1800-1804. 
arms,  cannon,  etc..  1812. 

avenues  and  roads.  1802, 1808, 1811, 1813, 1814. 
battle  lines,  location  and  marking,  1802, 1809- 

1811. 

commissioners,  1802-1805, 1808. 
defacing  monuments,  tablets,  etc.,  1806. 
establishment,  1800, 1801. 
injuring  tablets,  monuments,  etc.,  1806. 
Lincoln  memorial  tablet,  1807. 
Memorial  Association,  acquisition  of  lands  of, 

1800, 1801. 
monuments,  1803, 1805, 1806, 1807, 1809, 1810, 1811- 

1814. 

museum,  1812. 
regulations,  1805, 1806. 
State  monuments,  1803, 1813. 
supervision,  1802, 1805, 1806. 

tablets,  1802, 1805, 1806, 1807, 1809,  1810, 1811, 1814. 
Good  Order: 

conduct  prejudicial  to,  62  A.  "W. 
officers  to  keep,  in  their  commands,  54  A.  "W. 
Government  Hospital  for  the  Insane : 
admissions,  1777. 
Army,  1777. 

civilian  employees,  1777. 
convicts,  1777,  note, 
disbursements,  1779. 
discharge  of  patients,  1777, 1778. 
establishment,  1775. 
expenses  of  maintenance,  1777,  note, 
indigent  insane,  1777. 
National  Home  for  Disabled  Volunteer  Soldiers, 

1777,  note, 
officers,  1776. 

pensions  to  inmates,  1780. 
prisoners  of  United  States,  1777,  note. 
Soldiers'  Home,  1777. 
Grain: 

allowances,  559,  note. 
Grand  Army  of  the  Republic : 
badge,  wearing  of,  1009, 1010. 
cannon,  balls,  etc..  gifts  of,  876. 


Gratuitous  Issues  of  1'lothlng,  565. 
Guano  Islands: 

abandonment  of,  1585. 

claim  of  United  States  to,  1577. 

criminal  jurisdiction,  1583. 

disco  very,  1578-1580. 

employment  of  land  and  naval  forces,  1584. 

exportation  of  guano,  1581-1582. 

notice  of  discovery,  1578. 

privileges  of  discoverer,  1577-1580. 
Guard,  etc. : 

quitting  without  leave,  40  A.  W. 
Guards: 

command  in,  443. 
Habeas  Corpus  : 

allowance  of,  286. 

appeals,  294-297. 

application  for,  285. 

authority  to  issue  writ,  292,  note. 

body  of  party,  production  of,  289. 

conflict  of  authority,  292,  note. 

hearing,  290,  291. 

judgment,  292. 

operation  of  writ,  284. 

prisoner  in  jail,  284. 

production  of  party,  289. 

power  to  issue,  282, 283. 
State  courts,  292,  note. 

purpose  of  writ,  292,  note. 

return,  287-289. 

time  of  return,  287. 
Harbor  Lines  (see  Engineer  Department) : 

bulkheads  bejond,  forbidden,  820. 

constructions  outside  of,  forbidden,  820. 

deposits  beyond,  forbidden,  820. 

dredging  within,  821. 

establishment  of,  820. 

piers  beyond,  forbidden,  820. 

State  works,  restrictions  upon,  822. 

wharves  beyond,  forbidden,  820. 

works  beyond,  how  constructed,  820, 821. 
Harpers  Ferry : 

marking  lines,  etc.,  1829. 
Hay: 

allowance,  559,  note. 
Head  of  Department  (see  Executive  Departments) : 

absence  of,  temporary  provision  for,  7. 

action  on  chief  clerk's  report,  17. 

business  to  be  expedited,  17. 

counsel,  how  obtained,  273, 278,  279. 

death,  disability,  etc.,  7. 

detail  of  clerks,  limitation  on,  23. 

distribution  of  clerical  duties,  6, 23. 

duties,  ministerial  and  discretionary,  6,  note. 

employment  of  clerical  services,  restriction  on, 
2&-31. 

general  powers,  6,  note. 

opinions  of  Attorney-General,  273,  278, 279. 

resignation,  etc.,  provision  for,  7. 

sickness,  disability,  etc.,  7. 

temporary  appointments,  term  of,  12. 

vacancies,  temporary,  how  filled,  7-14. 
Headquarters : 

location  of,  453, 454. 
Health  (see  Public  Health),  1553. 
Hiring  of  Duty  (36  A.  W.) : 

conniving  at,  37  A.  W. 


824 


INDEX. 


Holidays: 

Christmas  Day,  35. 
Decoration  Day,  36. 
Fourth  of  July,  35,  36. 
Labor  Day,  37. 
Memorial  Day,  36. 
New  Year's  Day,  35. 
Thanksgiving  Day,  35. 
Washington's  Birthday,  35. 
Horses  (see  Animal*) : 
artillery,  548,  549. 
captured,  claims  for,  209. 
cavalry,  548, 549. 

claims  for,  207-210, 211, 212,  214, 215. 
condemned,  claims  for,  215. 
forage  allowance,  559, 560. 
limit  on  number,  549. 
losing,  etc.,  17  A.  W. 
lost,  captured,  etc.,  claims  for,  180, 207-215. 
Hospital  Corps  (see  Medical  Department) : 
acting  hospital  stewards,  638,  673, 679. 

detail,  679. 

eligibility  for  promotion,  679. 
allowances,  675, 678. 
ambulance  service,  673. 
company  bearers,  673,  note, 
composition,  673. 
hospital  stewards,  673-677. 

allowances,  675. 

appointment,  674. 

examination,  676. 

number,  674. 

pay,  675. 

rank,  675. 
litters,  673,  note, 
organization,  673. 
quarters,  571,  note. 

strength  of  Army,  not  included  in,  673. 
Hospitals   (see  Hospital  Corps  and  Medical  De- 
partment) : 
diet,  671. 
matrons,  584. 
nurses,  584. 

rations,  matrons  and  nurses,  584. 
sick,  purchases  for,  671 . 
Hospital  Stewards  (see  Hospital  Corps  and  Medical 

Department) : 
allowances,  675. 

appointed  by  Secretary  of  "War,  674. 
examinations,  676. 
fuel,  571,  note. 

Hospital  Corps,  part  of,  673. 
number,  674. 
pay,  675. 

quarters,  571,  note, 
rank,  675. 

rations,  582, 583,  675. 
Indian  Agencies  (see  Indian  Reservations,  Indian 

Agents,  and  Indians  and  Indian  A/airs) : 
discontinuance,  transfer,  etc.,  1390, 1405. 
limits  of,  1397. 
Indian  Agents  (see  Indian  Agencies,  Indians  and 

Indian  A/airs,  and  Indian  Reservations) : 
absence,  leave  of,  1406. 
allowances,  1385, 1408, 1409. 
army  officers,  to  be,  1392, 1393. 


Indian  Agents— Continued. 

bonds,  1387, 1407. 

deeds,  acknowledgments,  1395. 

discontinuance  of  offices,  1383, 1384, 1405. 

duplication  of  offices,  1406. 

duties,  1388, 1389. 

extra  services,  compensation,  1394. 

office,  term,  etc.,  1386, 1406. 

reports,  1389. 

residence,  1391. 

salary, 1385, 1408. 

subagents,  1396. 

traveling  expenses,  1409. 
Indian  Annuities  (see  Indians  and  Indian  Affairs) : 

army  officer  to  witness  distribution,  1420. 

distribution,  1418, 1424. 

hostile  Indians,  not  to  receive,  1431-1433. 

method  of  distribution,  1418, 1421. 

not  payable  to  tribes  holding  captives,  1433, 

number  present  at,  reported,  1440. 

payable  in  coin,  1413. 

goods,  1414. 
Indian  Police  (see  Indians  and  Indian  A/airs) : 

assault  and  battery,  1497, 1500. 

assaults  on,  1497, 1499, 1500. 

assault  with  intent  to  kill,  1500. 

crimes  against,  1497, 1500. 

detention  of  arrested  persons,  1489. 

duties,  1499. 
obstruction  in  performance  of,  1497. 

liquor  traffic,  1499. 

manslaughter,  1497, 1500. 

murder  of,  1497, 1500. 

number,  1499. 

organization,  1499. 

protection  of,  1497, 1500. 

Indian  Reservations  (see  Indian  Agents,  Indian 
Police,  and  Indians  and  Indian  A/airs) : 

absconding  Indians,  arrest  of.  1513. 

authority  to  remove  persons,  1508, 1510. 

cattle,  feeding  on,  prohibited,  1451. 
removing  from  Indian  country,  1473. 

detention  of  arrested  persons,  1512. 

distilleries  not  to  be  set  up,  penalty,  1477. 

feeding  stock  on,  1451. 

intoxicating  liquors,  introduction  of,  penalty, 
1474. 

intruders,  removal  of,  1508-1513. 

liquors  may  be  introduced  by  War  Department 
1474. 

military  force,  employment  of,  1511. 

removal  of  persons,  1483-1485, 1508, 1513. 

return  of  person  after  removal,  1509. 

searches  for  liquors,  1476. 

surveys,  1446. 

timber  depredations  on,  1486. 

trespassing  on  lands  of  civilized  Indians,  1455, 

1456. 

Indians  and   Indian  Affairs  (see  Indian  Agents, 
Indian  Reservations,  and  Indian  Police) : 

absconding,  arrest  of,  1490. 

accounts,  383,  384, 1425. 

advances  to  superintendents,  restriction,  1427. 

agents,  1382, 1383, 1384. 
officers  of  Army  to  act  as,  990, 1392, 1393. 

allotments,  1453, 1454. 


INDEX. 


825 


Indians  and  Indian  Affairs— Continued, 
ammunition,  etc.,  sale  to  prohibited,  386, 1471. 
annual  report,  387,  388. 
arms,  etc.,  sale  prohibited,  386, 1471. 
arrests,  employment  of  military  to  make,  1489, 

1490. 

arson,  1479. 

assaults,  1478, 1496, 1497. 
blacksmiths,  tribes  may  appoint,  1402. 
burglary,  1496. 
cattle,  feeding  on  lands  of,  1451. 

sales  of,  penalty,  1426. 
citizenship  of  allottees,  1454. 
claims,  385, 1417. 

for  supplies,  1417. 
Commissioner,  381. 
contracts,  1435-1438. 

assignments,  1437, 1438. 

payments  on,  1435, 1436-1438, 1439. 

with  Indians,  U34, 1435-1439. 
correspondence  with  foreign  nations,  1444. 
crime  by  one  Indian  against  another,  1496. 
crimes,  general  laws  respecting,  1481, 1482. 
depositions,  1495. 
depredations  by,  385. 

claims  for,  1429. 
disbursements,  1421. 
education,  funds  for,  1430. 
employees  not  to  trade,  1410. 
forgery,  1480. 

hunting  on  Indian  lands  prohibited,  1472. 
inspectors,  1380, 1381. 
instruction  of,  1401, 1403, 1404. 
interpreters,  1399, 1400, 1405. 
investigation  of  claims,  385. 
issues  of  army  rations,  1441. 
lands  and  buildings,  sales  of,  1457, 1458. 
larceny,  1496. 

licenses  to  trade,  1463-1471. 
liquors,  introduction  of,  1474. 
liquors,  officers  and  soldiers  not  to  donate  to, 

barter,  etc.,  1475. 
mails,  depredations  on,  1480. 
manslaughter,  1496. 
marriage,  1447-1449. 

effects,  1447, 1448. 

evidence  of,  1449. 
misapplication  of  funds,  1428. 
murder,  1496. 
officers  of  Army  to  be  Indian  agents,  990,  1392, 

1393. 

penalties,  recovery  of,  1459, 1461. 
police,  assaults  on,  1496, 1497. 
process,  execution  of,  1491, 1498. 
property,  reparation  for  injury  to,  1492-1494. 
purchases,  1415, 1416. 
recovery  of  penalties,  1459-1461. 
rape,  1496. 

rations,  army,  issues,  1441. 
removing  cattle  from  Indian  country,  1473. 
reparation  for  injured  property,  1492-1494. 
sale  of  buildings,  1457, 1458. 

cattle,  penalty,  1426. 
schools,  1389, 1401, 1403, 1404. 
seditious  messages,  sending  and  carrying,  pen- 
alty, 1443, 1444. 


Indians  and  Indian  Affairs— Continued, 
special  agents,  1398. 

supplies,  claims  for,  1417. 
Texas,  Indians  not  to  be  permitted  to  go  to, 

1487. 

timber  depredations,  1486. 
trading  with,  1463-1471. 

by  employees,  prohibited,  1410. 
treaties,  abrogation  of,  1412. 
not  to  be  made  with,  1411. 
white  men  not  to  acquire  rights  by  marrying 

Indian  women,  1447. 

Indian  Scouts  (see  Army  and  Enlisted  Men) : 
enlistment,  439. 
establishment,  436. 
numbers,  439, 440. 
pay,  440. 

Indian  Traders  (see  Indian  Reservations  and  In- 
dians and  Indian  Affairs) : 
arms  not  to  be  sold  to  hostile  Indians,  1471. 
licenses,  1463, 1464, 1465, 1466. 
penalties,  1468-1470. 
penalty  for  violation,  1432, 1433. 
prohibited, 1467, 1470. 
prohibition  of,  by  President,  1467. 
refusal  of  license,  1466. 
revocation  of  license,  1466. 
Infantry: 

artificers  of  ordnance,  detail  of,  868. 
colored, 1080. 
company,  1079. 

District  of  Columbia,  militia,  1286. 
militia,  1244. 

number  of  regiments,  436. 
organization,  1078, 1080. 
regiment,  1078. 

returns  of  strength,  519, 7  A.  "W. 
staff,  commissioned,  1078. 
noncommissioned,  1078. 
Infantry  and  Cavalry  School  at  Fort  Leavemvort h, 

Kans.,  1143. 
Inclosure  of  Public  Lands: 

resisting,  1544. 

Inquiry,  Courts  of.     (See  Courts  of  Inquiry.) 
Insane.     (See   Government  Hospital  for  the  In- 
sane. ) 

Inspector-General : 
appointed  from  corps,  520. 
inspection  of  Soldiers'  Home,  524,  note, 
rank,  520. 

Inspector-General's  Department  (see  Staff  Depart- 
ments) : 

acting  inspectors-general,  detail  of,  520,  note, 
appointments,  456,  520. 
articles  for  sales,  designation  of,  526. 
detail  of  line  officers,  520,  note, 
disbursements,  inspection  of,  522. 
duties,  522-526. 

expert  accountant,  appointment,  521. 
mileage,  634. 
pay,  634. 

travel  allowances,  634. 
inspections,  522-525. 

of  property  for  condemnation,  1236. 
inspectors-general,  520. 
mileage,  restriction  on,  523. 


826 


INDEX. 


In  specter-General' s  Department— Continued . 
military  prison,  525. 
organization,  520. 
reports  of  inspection,  478, 479, 522. 
stores  for  sales,  designation  of,  526. 
travel  allowances,  restriction  on,  523. 
Instructions  for  the  Government  of  the  Armies  of 

the  United  States  in  the  Field: 
armed  resistance,  p.  800. 
armistice,  pp.  797, 798. 

breach  of,  p.  798. 

capitulation,  p.  798. 

duration,  pp.  797, 798. 

effects,  p.  798. 

extent,  pp.  797, 798. 

general,  p.  797. 

special,  p.  797. 

who  may  make,  pp.  796, 797. 

written,  p.  797. 
art,  works  of,  p.  785. 
assassination,  p.  798. 
booty,  p.  789. 
churches,  p.  785. 
civil  war,  pp.  799,  800. 

rules  applicable  to,  p.  799. 
crime,  punishment  of,  pp.  780, 787, 793. 
deserters,  p. 787. 
enemies,  classification,  p.  799. 
exchange  of  prisoners,  pp.  793-795. 

basis,  pp.  793-794. 

cartels,  pp.  794, 795. 

credits  for  surplus,  p.  794. 

not  compulsory,  p.  794. 

paroles,  pp.  795-797. 
flags  of  truce,  p.  793,  note ;  p.  794. 

bearers,  p.  794. 
guides,  p.  792. 
hostages,  p.  788. 
insurrection,  p.  799. 

rules  applicable  to,  p.  799. 
jurisdiction,  military,  p.  782. 
libraries,  p.  785. 
martial  law,  p.  700. 

ambassadors,  p.  781. 

consuls,  p.  781. 

definition,  pp.  780, 781. 

effects,  p.  781. 

exceptions,  p.  781.    . 

execution,  p.  782. 

extent  of  operation,  p.  781. 

military  jurisdiction,  p.  782. 

ministers,  p.  781. 

occupation,  p.  780. 

paramount  in  occupied  territory,  p.  781. 

proclamation,  p.  781. 

relation  to  civil  law,  p.  781. 

self-proclaimed,  p.  780. 

taxation,  p.  781. 
military  jurisdiction,  p.  782. 

derivation,  p.  782. 

exercise  of,  p.  782. 

source,  p.  782. 

statutory,  p.  782. 
military  necessity,  pp.  782, 783. 

cruelty,  pp.  782,  783. 

definition,  p.  782. 

limitation  on,  pp.  782, 783. 


Instructions  for  the  Government  of  the  Armies  of 

the  United  States  in  the  Field— Continued, 
money,  appropriation  of,  p.  784. 
museums,  p.  785. 
necessity,  military,  pp.  782, 783. 
occupation,  p.  780. 
paroles,  pp.  790-797. 

apply  to  officers  only,  p.  796. 

belligerents  may  protest,  pp.  796, 797. 

breach  of,  penalty,  p.  796. 

definition,  p.  795. 

exceptional  character,  796. 

form,  p.  796. 

not  a  private  act,  796. 

not  given  by  enlisted  men,  p.  796. 

obligation,  p.  796. 

pledge  of,  p.  796, 

written,  p.  796. 
partisans,  pp.  790, 791. 

armed  prowlers,  p.  791. 

scouts,  p.  791. 

war  rebels,  p.  791. 
prisoners  of  war,  pp.  786-790. 

arms,  etc.,  p.  789. 

confinement,  p.  790. 

crimes  of,  p.  788. 

escape,  p.  790. 

exchange,  pp.  793-795. 

food,  p.  790. 

hostages,  p.  788. 

labor,  p.  790. 

money  and  property,  p.  789. 

quarter,  p.  788. 

ransom,  p.  790. 

treatment,  pp.  788-790. 

who  may  be  made,  p.  787. 
property- 
treatment  of,  pp.  783-787. 

prisoners,  789. 

private,  p.  785. 

public,  784, 785. 

violence  to.  786. 
quarter,  p.  788. 
rebellion,  pp.  799, 800. 

rules  applicable  to,  p.  799. 
retaliation,  pp.  783, 784. 
safe  conducts,  p.  791. 
siege  operations,  conduct  of,  p.  782. 
slavery,  pp.  784, 785. 
spies,  p.  792. 

agents  and  messengers,  pp.  792, 793. 

definition,  p.  792. 

guides,  p.  792. 

penalty,  pp.  792, 793. 

secret  communications,  p.  792. 

war  traitors,  p.  792. 
traitors,  p.  792. 
truce,  flags  of,  p.  795. 
truce  (aee  Armistice),  pp.  797,  798- 
war — 

carried  on  by  whom,  p.  783. 

definition,  p.  783. 

law  of,  pp.  780-800. 

levying  of,  definition,  p.  800. 

persons,  protection  of,  p.  783. 

property,  protection  of,  p.  783. 


INDEX. 


827 


Instructors  of  Music.     (See  Unlisted  Men.) 
Insurrection  (see  Force,  Employment  of) : 

engaging  in,  penalty,  1589. 

inciting,  penalty,  1589. 

•suppression  of,  1501-1504. 
Intercourse : 

suspension  of,  1514-1535. 

Interior  Department  (see  Secretary  of  the  Interior 
and  Executive  Departments) : 

establishment,  372. 

Indian  Affairs,  381-388. 

Indian  Office,  381-388. 

Land  Office,  375-380. 

Pension  Office,  389,  390. 

Returns  Office,  391-394. 
Interment  of—- 
deceased officers,  993,  note. 

soldiers,  1070,  note. 
International  Agreements : 

convention  with  Mexico,  pp.  776-779. 

Geneva  Convention,  pp.  759-775. 
Interpreters : 

to  courts-martial,  1312,  note. 
Intoxicating  Liquors: 

use  of,  by  employees,  94. 
Invasion.     (See  Force,  Employment  of.) 
Inventions : 

money  not  to  be  expended  in  perfecting,  908. 

royalties  on,  not  to  be  paid  to  officers,  etc.,  907. 
Inventories: 

annual,  in  Executive  Departments,  52. 
Issues: 

extra,  580,  note. 

forage,  559,  560, 571,  note. 

fuel,  571,  note. 

gratuitous,  of  clothing,  565. 

subsistence,  580-586. 
Judge- Advocate-General : 

duties,  529. 

rank,  527. 
Judge-Advocate-General'  s  Department : 

acting  judge-advocates,  527. 

assistant  judge-advocate-general,  527. 

clerical  force,  64. 

court-martial  records,  532. 

deputy  j  udge-advocates- general,  527. 

disposition  of  records  of  minor  courts,  532. 

duties,  530,  note;  531,532. 

judge-advocates,  527, 530, 531. 

oaths,  administration  of,  531. 

organization,  527. 

preservation  of  court-martial  records,  529, 1313. 

promotions,  528. 

records  of  general  courts-martial,  disposition, 

529. 

minor  courts-martial,  532. 

Judge-Advocates  (see  Courts-Martial  and  Judge- 
Advocate- General'' s  Department) : 

acting,  detail  of,  527. 

duties,  530-532. 

oaths,  administration  of,  531. 
Jurisdiction  Over  Reservations,  1210,  note. 
Jury  Duty : 

exemption  of  employees  at  armories  and  arsenals, 

905. 

Justice,  Department  of  (see  Attorney -General  and 
Executive  Departments) : 

claim  cases,  prosecution  of,  204. 


Justice,  Department  of— Continued. 

conduct  of  cases,  276. 

counsel,  furnishing  of,  43,  278-280. 

duties,  271-280. 

establishment,  269. 

land  titles,  examination  of,  271. 

legal  services  rendered  by,  278. 
Labor  Day.     (See  Holidays.) 
Laborers : 

eight-hour  law,  1193-1196. 

employment  of,  1151. 

lien,  1197, 1198. 
Land-Grant  Railroads,  552. 
Land  Office : 

accounts,  378. 

Commissioner,  375, 377. 

Court  of  Private  Land  Claims,  380,  note. 

military  service,  warrants  for,  379. 

patents,  380. 
signature  to,  376. 

recorder,  duties,  380. 

returns,  378. 

secretary  to  sign  patents,  376. 

warrants,  379. 
Lands  (see  Public  Lands) : 

abandoned  reservations,  1211-1214. 

assent  of  States  to  purchases,  1206. 

building  sites,  1149. 

condemnation  of,  1208, 3209. 

examinations  of  title,  271. 

fortifications,  acquisition  of  sites  for,  792. 

jurisdiction  over,  1210. 

leases,  1215. 

national  cemeteries,  1860. 

pre-emption,  1199, 1200. 

purchases  of,  1148, 1208, 1209. 

releases,  1207. 

removal  of  trespassers,  1554-1555. 

restrictions  on  purchases  of,  1205. 

rights  of  way,  1202, 1203. 

sales  of,  under  distress  warrant,  240. 

sites  for  buildings,  1149. 

timber  depredations,  1554. 

titles,  examination  of,  1204. 

titles  to,  to  be  examined  by  Attorney-General, 
271. 

trespassers,  removal  of,  1554-1555. 
Laws  of  the  United  States.     (See  Revised  Statutes 

and  Statutes  at  Large.) 
Leases : 

power  to  make,  1215. 
Leaves  of  Absence  to  Officers: 

awaiting  orders,  pay  status,  621. 

cumulative  leave,  622. 

pay  during,  621,  622. 

power  to  grant,  621,  622,  951,  note. 

sick  leave,  621. 

Legal  Holidays.     (See  Holidays.) 
Legal  Services : 

to  be  furnished  by  Department  of  Justice,  278. 
Letters : 

franking  privilege,  264-267. 

free  delivery,  264-267. 

official,  mailed  free,  264,267. 

penalty  envelopes,  264,  265. 

postage,  rates  of,  261-263. 


828 


INDEX. 


Letters— Continued. 

registry  of,  free  in  Executive  Departments,  267. 

special  delivery,  262,  263. 
Liens  on  Contractors : 

laborers,  1197, 1198. 

mechanics,  1197, 1198. 

procedure  to  enforce,  1197, 1198. 
Light-House  Board  (see  Engineer  Department) : 

allowances  of  detailed  officers,  723. 

board,  composition,  721. 

compensation  of  detailed  officers,  723. 

construction,  722. 

engineer  officers,  721,  722, 723. 

inspectors,  detail  of,  723. 

light-houses,  721-723. 

secretary,  721. 
Limitation,  Statutes  of: 

desertion,  1066, 1337. 

in  criminal  prosecutions,  1336. 
Limited  Retired  List,  981. 
Limits  of  Punishment,  p.  704. 
Line  of  the  Army  (see  Artillery,  Cavalry,  Infantry, 
Hank,  and  Command) : 

appointments  to  staff,  456. 

artificers  of  ordnance,  detail  of,  868. 

artillery,  1075-1077. 

cavalry,  1071-1073, 1074. 

commissioned  officers,  937-994. 

details  of  officers  as  acting  inspectors-general, 

520,  note, 
judge-advocates,  527. 

dismounted  cavalry,  1074. 

enlisted  men,  1012-1070. 

infantry,  1078-1080. 

light  artillery,  1077. 

lineal  promotion,  457. 

parks,  use  of  for  maneuvres,  1781, 1782. 

pay,  608-623,  638-660. 

returns,  of  troops,  519,  note;  7  A.  W. 

transfers,  952. 

troops,  1071-1080. 
Lieutenant-General : 

aids,  441. 

allowance  of  quarters,  625,  627. 

discontinuance  of  grade,  436. 

military  secretary,  441. 
Liquors : 

introduction  on  Indian  reservations  prohibited, 

1474, 1475. 
War  Department  may  authorize  same,  1475. 

sale  of,  at  military  posts,  1225. 

use  of,  by  employees,  94. 
Loaning  Funds  Unlawfully,  499, 501. 
Longevity  Pay: 

colonel,  limit  of,  616. 

lieutenant-colonel,  limit  of,  616. 

limitation  on,  615, 616. 

rates  of,  614. 

service,  how  reckoned,  617,  618. 
Losing  Horse,  Accouterments,  etc.,  17  A.  W. 
Lost  Checks  (see  Checks). 
Lowest  Bidder,  1165. 
Loyal  Legion : 

badge  of,  1010. 


Lying  Out  of  Quarters,  31  A.  W. 
Magazine  Arms,  908-911. 
Mail  Matter: 

classification,  260. 
free  carriage  of,  264-267. 
rates  of  postage,  261. 
registration,  267. 
special  delivery,  262, 263. 
Mails: 

depredations  on,  1480. 
obstructing,  1556. 
Major-General  Commanding: 
aids,  442. 

assignment,  452,  note, 
command,  452,  note, 
horses,  boards  to  inspect,  548. 
Major-Generals  (436) : 
aids,  442. 
assignments,  448. 
command,  452,  note, 
number,  436. 
Maps: 

sales  of,  76. 
Marches : 

command,  443. 

Marines  (see  Navy  Department) : 
Articles  of  War,  when  applicable,  367. 
brevets,  359. 

commandant,  rank  of,  357. 
command  in,  443. 
companies,  363. 
composition,  355. 
detachments,  363. 
enlisted  men— 

allowances,  364. 

enlistments,  360,  361. 

exemption  from  arrest  for  debt,  362. 

pay  and  allowances,  364. 

retirement,  368. 
enlistments,  360. 

oaths,  361. 

exemption  from  arrest  for  debt,  362. 
officers- 
allowances,  364. 

brevets,  359. 

longevity  service,  356. 

pay,  364. 

rank,  358. 

retirement,  368. 

retiring  boards,  369. 
organization,  363. 
pay.    (See  Pay  Department.) 
rank  of  officers,  358. 
regulations  by  President,  366. 

Army,  when  applicable,  367. 

Navy,  when  applicable,  367. 
retirement  of  officers,  368, 369. 
shore  duty,  365. 
Marshals : 

crimes  against,  1497. 
Materials: 

proceeds  of  sales,  in  Book  of  Estimates,  174. 
sales  of,  491, 493, 494. 
Mechanics : 
employment  of,  27, 31. 
lien,  1197, 1198. 


INDEX. 


829 


Medals  of  Honor: 

action,  distinguished  services  in.  1007. 
awarded  to  whom,  1007. 
lost  ribbon,  how  replaced,  1007. 
regulations  respecting,  1007. 
ribbon  for,  1007. 
rosettes,  in  place  of,  1007. 
Medical  Attendance : 

families  of  officers  and  soldiers,  672. 
Medical  Department  (see  Staff  Departments) : 
acting  hospital  stewards,  679. 
ambulances,  673,  note, 
appointments,  662,  664. 
artificial  limbs,  680-687. 
assistant  surgeons-general,  662,  663. 
attendance,  672. 
bearers,  673,  note, 
buildings,  691,  note ;  692. 
civilian  employees,  number  of,  694,  note. 

sales,  etc.,  to,  693. 
clerical  force,  64. 
command,  668. 
company  bearers,  673,  note, 
competitive  examinations,  662, 664. 
contract  surgeons,  662. 
cooking,  supervision  of,  670. 
duties,  669,  670,  671,  672,  680-694. 
examinations  for  promotion,  664, 666. 
Hospital  Corps,  673-679. 
hospital  stewards,  673. 

allowances,  675. 

appointment,  674. 

examinations,  676. 

number,  674. 

pay,  638,  675. 

quarters,  571,  note,  692. 

rank,  675. 
hospitals,  691,  692. 
litters,  673,  note. 

medicines  and  medical  supplies- 
purchases,  694. 

sales,  693,  694,  note,  1748. 
organization,  662. 
precedence  of  officers,  667. 
privates  of  Hospital  Corps,  673. 

allowances,  678. 

details,  679. 

enlistment,  677. 

number,  677. 

pay,  638, 678. 

transfers  from  line,  677. 
procurement  of  supplies,  694. 
promotions,  457,  664. 
purchases,  671, 694, 1176. 
quarters  for  hospital  stewards,  692. 
rank  of  officers,  662,  663,  667. 
retiring  boards,  969. 
sales  to — 

civilian  employees,  693. 

National  Homes,  etc.,  1748. 

transportation  to  procure  artificial  limbs,  686,687. 
trusses,  688-690. 
Members  of  Congress: 
aiding  in  procurement  of  contracts  prohibited, 

124, 125, 1181-1184. 
compensation  for  certain  services  restricted,  125. 

franking  privilege,  266. 


Memorial  Day.    (See  Holidays.) 
Mesne  Process : 

exemption  of  enlisted  men  from  arrest  on,  1067. 
Messengers,  25. 
Mexican  War : 

pay  of  non-commissioned  officers,  652. 
pensions,  1643, 1644. 

removal  of  charge  of  desertion,  1058-1065. 
Mexico,  Convention  with : 
abandonment  of  pursuit,  p.  778. 
abuses,  punishment  of,  p.  778. 
boundary,  crossing  of,  p.  776. 
commanders  of  troops,  p.  777. 
convention  with,  pp.  776-779. 
crossing  of  boundary — 

conditions,  pp.  777, 778. 

limitation  on,  p.  777. 

location  of,  p.  777. 

purpose,  pp.  776, 777. 
duration  of  agreement,  p.  778. 
guides,  p.  777. 

Kid's  band  of  hostile  Indians,  p.  776. 
offenses  against  inhabitants,  p.  779. 
pursuit — 

abandonment,  p.  778. 

duration,  pp.  777-778. 

nature  of,  p.  776. 
trailers,  p.  777. 
troops,  fluty  of,  p.  778. 

Mileage  (see  Travel  Allowances  and  Pay  Depart- 
ment) : 

by  whom  paid,  633. 
computation,  630,  631. 
engineer  officers,  707,  726. 
orders  involving,  contents,  630,  632. 
paid  by  Pay  Department,  633. 
rates,  631. 

shortest  usually  traveled  route,  630, 631. 
Ililitary  Academy: 
absence,  leave  of,  to  officers,  1123. 
Academic  Board,  command  of,  1087,  note. 

consent  of,  to  reappointment  of  deficient  cadet, 

1116. 

academic  staff,  1087-1101. 
additional  pay  to  enlisted  men,  1136. 
admission  of  cadets,  1106-1108. 
alcoholic  drinks,  study  of,  1137, 1138.' 
appointment  of  cadets,  1102-1108. 

officers,  1087. 
assistant  instructors  of  tactics,  1081, 1096. 

librarian,  1100. 

professors,  1081, 1096. 
associate  professor  of  mathematics,  1084. 
band,  1130-1133. 

composition,  1130, 1132. 

leader,  1130-1132. 

organization,  1130, 1132. 

pay,  1131, 1133. 

teacher  of  music,  1081, 1132, 1133. 
Board  of  Visitors,  appointment,  1119. 

compensation,  1121, 1122. 

duties,  1120. 

expenses,  1121, 1122. 

mileage,  1121, 1122. 

number,  1119. 

report,  1120. 


830 


INDEX. 


Military  Academy— Continued, 
cadets — 

advance  appointments,  1104. 

age,  1105. 

appointments,  1102-1105. 

battalion  of,  1113. 

courts-martial,  1118. 

deficiency  of,  1116. 

engagement  for  service.  1108. 

examination  for  admission,  1106. 

graduates,  assignments  of,  1110-1111. 

hazing,  penalty,  1117. 

oath, 1108. 

pay,  1109. 

qualifications,  1106. 

reinstatement,  1116. 

Sunday,  studies  on,  1115. 

supplies  at  cost,  1098. 

where  to  do  duty,  1114. 
chaplain,  1085. 

civilian  employees,  1127,  note, 
clerks,  1127,  note, 
commandant  of  cadets- 
appointment,  1081, 1087-1091. 

duties,  1092. 

pay,  1093. 

rank,  1090. 

contingencies  for  Superintendent,  1128. 
contingent  fund,  1129. 
courts-martial  for  trial  of  cadets,  1118. 
Cullum  hequest,  1139, 1140. 
deficiency  of  cadets,  1116. 
documents,  1124, 1125. 
employees,  1127,  note, 
extra-duty  pay  to  certain  enlisted  men,  1136, 

note. 

general-service  men- 
allowances,  1134. 

artillery  detachment  merged  in,  1134. 

cavalry  detachment,  strength,  1135,  note. 

number,  1135. 

organization,  1134, 1135. 

pay,  1134. 
graduated  cadets,  pay  and  promotion,  944, 945, 

1110, 1111 
hazing,  1117. 

law  professor,  assignment  of,  1082. 
leaves  of  absence  to  officers,  1123. 
librarian,  1100. 
library- 
assistant  librarian,  1100. 

documents  for,  1124, 1125. 

librarian,  1100. 

purchases  for,  1126. 
local  rank  of  officers,  1087, 1090. 
master  of  the  sword,  1081, 1101. 
mathematics,  associate  professor,  1084. 
modern  languages,  professor,  1081, 1083. 
narcotics,  study  of,  1137, 1138. 
officers- 
acting  assistant  professors,  1087, 1089. 

adjutant,  1087, 1099. 

assistant  librarian,  1100. 

assistant  professors,  1081, 1096. 

associate  professor  of  mathematics,  1084. 

chaplain,  1085. 


Military  Academy— Continued. 

commandant  of  cadets,  1081, 1087-1090, 1092. 

commissary  of  cadets,  1098. 

instructors,  1081. 

librarian,  1100. 

master  of  the  sword,  1081, 1101. 

professors,  1081-1084, 1087, 1094, 1095. 

Superintendent,    1081,    1087-1091,    1118,    1126- 
1128. 

teacher  of  music,  1081, 1130-1132. 
organization,  1081. 
part  of  military  establishment,  436. 
pay- 
adjutant,  1099. 

assistant  instructors  of  tactics,  1097. 

assistant  professors,  1096. 

associate  professor  of  mathematics,  1084. 

band,  1133. 

cadets,  1109. 

chaplain,  1085. 

commandant,  1093. 

graduated  cadets,  945, 1112. 

professors,  1094. 

quartermaster  and  commissary  of  cadets,  1098, 
note. 

senior  assistant  instructors  of  tactics,  1096. 

Superintendent,  1093. 

teacher  of  music,  1131, 1133. 
professor  of  law,  1082. 

modern  languages,  1083. 
professors — 

allowances,  1094. 

appointment,  1081-1084, 1087. 

assignment,  1082. 

command,  1088. 

duties,  1081-1084. 

pay,  1094. 

retirement,  1094. 
promotion  of  cadets,  944, 1110. 
purchases,  1126, 1127. 
selection  of  officers,  1088. 
Superintendent,  1087, 1088, 1091, 1093. 

appointment,  1081, 1087-1089. 

command,  1091. 

contingencies,  1128. 

courts-martial,  1118. 

pay,  1093. 

rank,  1090. 
supervision,  1086. 
supplies  for  cadets  to  be  sold  at  cost,  1098. 

procurement  of,  1126, 1127. 
teacher  of  music,  1081, 1132, 1133. 
Visitors,  Board  of,  1119-1122. 
Military  Establishment,  436. 
Military  Force  (see  Force,  Employment  of) : 
employment  of,  1501-1593. 
restrictions  on,  1562. 
Military  Governments : 

created  by  President,  2,  note. 
Military  Headquarters,  453, 454. 
Military  Necessity,  pp.  780,  781. 
Military  Order  of  the  Loyal  Legion: 

badge  of,  1010. 
Military  Posts.     (See  Postt.) 
Military  Prison : 
inspection  of,  525. 


INDEX. 


831 


Military  Secretary,  441. 
Military  Storekeepers : 

appointments,  limitation,  534,  863,  864. 
Quartermaster's  Department,  534. 
ordnance,  863, 864. 
pay,  608,  863. 
rank,  863. 

Military  Tribunals.     (See  Courts-Martial.) 
Militia: 

active  service,  organization,  1259-1262. 
adjutants-general,  1248-1250. 
allowances,  1264-1268. 
annual  returns,  81, 1249, 1250. 
appointment  of  officers,  1245. 
apportionment  of,  1257, 1506. 
appropriation  for  arming,  available   until  ex- 
pended, 1275, 1283, 1284. 
apportionment  of,  1276. 
arms  and  equipments,  1242, 1246, 1275, 1276. 
distribution  to  States,  etc.,  1279-1280. 
extra  issues  to  States  and  Territories,  1290, 

1291. 

purchases  of,  bow  made,  1277. 
unserviceable,  disposition  of,  1278. 
artillery,  1246. 
bearing  arms,  rigbt  of,  1238. 
brigades,  1244, 1261. 

inspectors  of,  1254. 
calling  out,  1256, 1505. 

cannon  for  militia  on  gulf  and  sea  coasts,  1285. 
cavalry,  1246. 
clothing,  1264. 
colors  of  regiments,  1247. 
command,  443. 
composition  of,  1239. 
courts-martial,  1272, 1303, 1307. 
disabled,  care  of,  1253. 
discipline,  1251. 
disobedience  of  orders,  1263. 
distribution  of  arms,  etc.,  901, 912, 1279-1281. 
District  of  Columbia- 
active  militia,  organization,  1286  (10-18). 
adjutant-general,  1286  (9). 
allowances,  1286  (55-58). 
armories,  1286  (39) . 
arms,  1286(31). 

care,  issue,  etc.,  regulations  for,  1286  (32). 
issued  by  War  Department,  1286  (31). 
artillery,  1286(15). 
band,  1286  (19). 
pay,  1286  (56). 
camp  duty,  1286  (43) . 
causes  of  discharge,  1286  (28). 
commander  in  chief,  1286  (6). 
commanding  general,    drills  prescribed  by, 

1286  (41). 

regulations  to  be  made  by,  1286  (32, 62). 
commissioned  officers,  1286  (19-24). 
appointment,  1286  (19). 
commissioned  by  President,  1286  (19). 
departmental  duties,  1286  (60). 
discharge,  1286  (24). 
election,  1286  (22). 
examinations,  1286  (23). 
liability  of,  1286  (35). 
military  duties,  1286  (60). 


Militia-Continued. 
District  of  Columbia— Continued, 
commissioned  officers— Continued. 

nominations,  1286  (20,  21). 

returns  (31-36). 

company  constitutions,  etc.,  1286  (59). 
contracts  to  be  made  by  District  Commis- 
sioners, 1288. 

courts-martial,  1286  (51-54). 
courts  of  inquiry,  1286  (50). 
disbandment  of  companies,  1286  (18). 
disbursements,  1286  (58),  1288. 
discharge  of  enlisted  men,  1286  (28-30). 
dishonorable  discharge,  1286  (29,  30). 
drill  regulations,  1286  (61). 

use  of  Washington  Barracks,  1286  (44). 
drills,  1286  (40). 
duty- 
definition  of,  1286  (40). 

drills,  1286  (40). 

excuses  from,  1286  (46). 

riots,  1286(45). 

target  practice,  1286  (44). 
employees  of  United  States,  leave,  1286  (49). 
encampments,  1286  (43, 48). 
enlisted  men,  1286  (26-30). 

term  of  enlistment,  1286  (26). 
enlistment,  1286  (26, 27). 
enrollment,  1286  (1-3). 
estimates,  1286  (58). 
excuses  from  duty,  1286  (46). 
exemptions,  1286  (2). 
expenses  and  allowances,  1286  (55-58). 
general  commanding,  1286  (7). 
infantry,  1286  (12-14). 
inspections,   1286  (42). 
leases  to  be  made  by  District  Commissioners 

1288. 

muster,  1286(42). 
oath,  1286  (27; 

ordering  into  service,  1286  (5). 
ordnance,  issues  of,  1287. 
parades,  right  of  way,  1286  (47). 
personal  property,  1286  (38). 
President  to  command  in  chief,  1286  (6). 
property- 
care,  iasue,  etc.,  1286  (32-36). 

continues  property  of  United  States,  1287. 

personal,  right  to  own,  1286  (38). 

punishment  for  selling,  etc.,  1286  (34). 

responsibility  for,  1286  (33, 35). 

selling,  etc.,  penalty,  1286  (34). 

unserviceable,  disposition  of,  1286  (36). 
reenlistment,  1286  (26). 

regulations  to  be  made  by  commanding  gen- 
eral, 1286  (32,  62). 

requisites  of  enlistment,  1286  (27). 
returns  of  arms,  etc.,  1286  (33). 
rigbt  of  way,  1286  (47) 
riots,  1286  (45). 

selling  property,  etc.,  penalty,  1286  (34). 
staff,  1286  (8). 
strength,  1286  (11). 
subsistence,  1286  (57). 
system  of  drill,  1286  (61). 
uniforms,  distinction,  1286  (37). 


832 


INDEX. 


Militia— Continued. 

District  of  Columbia— Continued, 
unserviceable  property,  1286  (36). 
vouchers,  1288. 
Washington  Barracks,  use  of,  1286  (44). 

divisions,  1244, 1261. 

drill,  system  of,  1251. 

enrollments,  1240-1243. 

exemptions,  1243. 

expenses  of  mobilization,  1268. 

fines- 
how  levied,  1273. 
paid  into  Treasury,  1274. 

forage,  1267. 

general  officers,  1261. 

half  pay,  1270. 

heavy  guns  for  certain  States,  1285. 

horses,  allowances  for,  1267. 

infantry,  organization  for  active  service,  ]260. 

inspectors  of  brigades,  1254. 

mounted,  pay,  1267. 

notice  of  enrollment,  1241. 

officers  appointed  by  States,  1245. 

organization,  1244, 1259-1262. 

pay, 1264-1267. 

period  of  service,  1262. 

privileges  of  certain  corps,  1255. 

rank  of  officers,  445, 1252. 

rations,  1264, 1269. 

returns,  1249-1250. 

staff  in  active  service,  1261. 

subject  to  rules  and  Articles  of  War,  1258, 1507. 

territorial,  1289. 

unserviceable  arms,  equipments,  etc.,  1278. 

use  of  national  military  parks  for  maneuvers, 
1781, 1782. 

widows,  half  pay,  1270. 

wounded,  care  of,  1253. 
Misbehavior : 

before  enemy,  42  A.  W. 
Misprision  of  Treason,  1588. 

Mississippi  River  Commission  (see  Engineer  De- 
partment) : 

creation,  747. 

duties,  749-751,  753-758. 

material  for  improvements,  753. 

organization,  748. 

piers  and  cribs,  755. 

president,  748. 

report,  713,  750. 

secretary,  752. 

snag  boats,  758. 

South  Pass,  756,  757. 

surveys,  749-751. 

water  gauges,  754. 

Missouri    River  Commission    (see  Engineer  De- 
partment) : 

compensation,  760. 

creation,  759. 

duties,  761,  762. 

engineer  assistants,  detail  of,  761. 

president,  760. 

report,  713. 

supervision  of  expenditures,  761, 762. 
Minor  Courts  (see  Courts-Martial) : 

disposition  of  records,  532, 

jurisdiction,  1328. 


Minors : 

claims  for  horses  lost,  etc.,  211. 

enlistment,  contract  of,  1017,  note. 
Ministerial  Duty,  6,  note. 
Mints: 

to  be  subtreasuries,  223-224. 
Mitigation  of  Sentence,  1321. 
M  i \<>il  Detachments : 

command  of,  443. 
Money  (see  Public  Money  and  Funds) : 

accounts,  495, 496. 

counterfeit,  disposal  of,  513. 

embezzlement,  499-508. 

fraudulent  conversion,  499-504. 

fraudulent  payments,  498. 

premium  on,  to  be  accounted  for,  483. 

protection  of,  912a. 

receipts  for,  greater  than  payment,  498. 

recovery  of,  by  suits,  497. 

unlawful  loaning,  499. 
Monuments  (see  National  Military  Parks) : 

cannon  balls,  etc.,  for,  876. 
Mourning: 

closing  buildings  in  memory  of  deceased  ex- 
officials  prohibited,  58. 

draping  of  buildings  prohibited,  57. 
Mules  (see  Animals)  -. 

forage,  559,  560. 
Murder : 

in  time  of  war,  58  A.  W. 
Murder  of  Indian  Police,  1497, 1500. 
Musicians  (see  Enlisted  Men) : 

artillery,  1076. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 
Musters: 

false,  5, 14  A.  W. 

of  persons  not  soldiers,  5  A.  W. 

taking  money,  etc.,  for,  6  A.  W. 
Mutiny: 

failing  to  quell,  etc.,  23  A.  W. 

penalty  for,  22  A.  W. 
National  Banks : 

notes  of,  as  tender,  194. 
National  Cemeteries : 

acquisition  of  lands,  1860, 1861, 1862. 

approaches  to,  1874,  note. 

Arlington  Cemetery,  interments,  1869. 

criminal  offense,  penalties,  1871. 

headstones,  1866, 1867. 

inclosures,  1866. 

interments,  1868, 1869, 1872. 

jurisdiction,  1870, 1871. 

lands,  acquisition  of,  1860-1862. 

maintenance,  1859. 

Mexico  Cemetery,  1872, 1873. 

railroads,  encroachments  by,  187d. 

register  of  burials,  1867. 

roads,  1874,  note. 

superintendents,  1863-1865. 
allowances,  1863, 1865. 
appointment,  1864. 
compensation,  1865. 
duties,  1863-1871. 
qualifications,  1864. 
residence,  1863. 


INDEX. 


833 


Homes  for  Disabled  Volunteer  Soldiers : 

accounts,  1746-1754. 

admissions,  1762. 

allowances  to  officers,  1760. 

appropriations,  1745-1748, 1750, 1751. 

bond  of  treasurer,  1759. 

Branch  Homes,  1761. 

cannon,  1772. 

compensation  of  managers,  1740. 

discipline,  1769. 

documents  for,  1773. 

duties  of  managers,  1737-1742, 1744, 1747, 1752. 

employees,  1756-1770. 

estimates,  1742, 1744, 1745, 1752, 1753, 1754. 

expenditures,  1744, 1746-1754. 

expenses,  1742, 1746-1754. 

franking  privilege,  1774. 

funds  for  support  of  Home,  1743, 1744. 

Government  publications,  1773. 

hospital  supplies,  1748. 

inmates,  1766-1770. 

clothing  for,  1770. 

discipline,  1769. 

insane,  1771. 

pensions  of,  1766, 1767. 

subject  to  Articles  of  "War,  1769. 
insane  inmates,  1771. 
inspections,  524, 1755. 
mail  matter,  official,  carried  free,  1774. 
managers,  1737-1742, 1744, 1747, 1752. 

allowances,  1740. 

compensation,  1740. 

duties,  1737-1742, 1744, 1745, 1752, 1753. 
•    estimates,  1744, 1745, 1753, 1754. 

expenses,  1742, 1746, 1752. 

number,  1737-1740. 

officers,  1739. 

organization,  1737, 1739. 

reports,  1741, 1742, 1752. 

travel  allowances,  1740. 
medicines,  1748. 
officers,  1756-1760. 

deputy  governor,  1756. 

eligibility,  1756, 1758. 

governor,  1756. 

pay  rolls,  1757. 

qualifications  for  office,  1756, 1758.      • 

secretary, 1756. 

travel  allowances,  1760. 

treasurer,  1756, 1758, 1759. 
official  mail  matter,  1774. 
organization,  1737. 
outdoor  relief,  1768. 

pay  and  allowances  of  officers,  1757, 1760. 
pensions  to  inmates,  1766, 1767. 
permanent  appropriations  for,  180. 
proceeds  of  sales,  1749. 
qualifications  for  admission,  1761. 

office,  1756, 1758. 
reports,  1741, 1742, 1752. 
sales,  disposition  of  proceeds,  1749. 
secretary,  1756. 
Secretary  of  War,  supervision,  1742,  1743,  1744, 

1745,1747,1753,1754,1755. 
State  and  Territorial  Homes,  1763-1765. 

admissions,  1762-1763. 

1919 53 


National  Homes  for  Disabled  Volunteer  Soldiers- 
Continued. 

State  and  Territorial  Homes— Continued, 
control,  1763-1765. 
cost  of  maintenance,  1763, 1765. 
documents  for,  1773. 
inspection,  1763. 

restriction  on  payments  to.  1763, 1765. 
supervision,  1763. 
support,  1763-1765. 

supervision  by  Secretary  of  War,  524. 
treasurer,  1756, 1758, 1759. 

National  Parks  (see  the  Antietam  Battlefield,  the 
Chickamauga  National  Military  Park,  the 
Gettysburg  National  Park,  the  Shiloh  Na- 
tional Military  Park,  the  Yellowstone  Park 
and  Forest  Reservations),  1781-1865. 
Naturalization  (see  Citizenship) : 
African  descent,  persons  of,  1373. 
aliens,  1367. 
children,  1372. 
conditions  of,  1367-1376. 
courts  having  power  to  naturalize,  1367. 
declaration  of  intention,  1367, 1368. 
discharged  soldiers  and  sailors,  1369, 1370. 
enemies  not  admitted,  1375. 
expatriation,  1364. 
free  white  persons,  1373. 
Indians,  1379. 

intention,  declaration  of,  1367, 1368. 
minor  residents,  1371, 1372. 
oath, 1367. 

proof  of  residence,  1367. 
protection  of  citizens  abroad,  1365, 1366. 
release  of  citizens  in  prison  abroad,  1366. 
residence,  1367. 
sailors,  1370. 
seamen,  1378. 
soldiers,  1369, 1370. 
State  courts  may  naturalize,  1367. 
white  persons,  1373. 
widows,  1372. 
Naval  Officers : 

detail  of,  in  War  Department,  371. 
details  to  colleges,  959. 
relative  rank,  446. 

Navigable  Waters  of  the  United  States  (see  En- 
gineer Department) : 
Alabama,  rivers  in,  798. 
Black  Warrior  River,  798. 
Cahawba  River.  798. 
Coosa  Eiver,  798. 

definition,  794, 795,  note ;  796, 797, 798. 
deposits  of  refuse  in,  826-828,  830. 
Des  Moines  River,  797. 
displacement  of,  by  wharves,  829. 
fish  ways,  834. 
improvement  of,  795,  note, 
injuries  to  works,  823-830. 
Iowa  River,  796. 
Iowa,  rivers  in,  796, 797, 799. 
Ne\v  York  Harbor,  deposits  in,  835-847. 
obstruction  of,  by  wrecks,  etc.,  831-834. 
obstructions  to  works,  823-830. 
Orleans  and  Louisiana  Territories,  waters  in,  to 

be  free,  795. 
refuse,  deposits  of,  in,  826-828. 


834 


INDEX. 


Narigable  Waters  of  the  United  States— Cont'd. 

sale  of  wrecks,  etc.,  831, 834. 

sunken  vessels,  wrecks,  etc.,  removal  of,  831-834- 

Tennessee  River,  798. 

Tennessee,  rivers  in,  798. 

wrecks,  sunken  vessels,  etc.,  removal  of,  831-834. 
Navy  (see  Navy  Department) : 

bunting  for,  1164. 

supplies  for,  550. 

transfers  to,  from  Army,  1030. 
Nary  Department  (see  Executive  Departments)  -. 

establishment,  354-371. 

marines,  355-369. 

subsistence  for,  procured  by  Subsistence  De- 
partment, 578. 

supervision  of  deposits  in  New  York  Harbor 
844. 

supplies  for,  550. 

Navy,  Secretary  of.     (See  Secretary  of  the  Navy.) 
Neglect  of  Duty,  etc.,  67  A.  W. 
Neutrality  (see  Force,  Employment  of) : 

accepting  commissions,  1563. 

arming  vessels,  1565, 1566. 

augmenting  force  of  vessels,  1567. 

duties,  enforcement  of,  1569-1573. 

enforcement  of  neutral  duties,  1569-1573. 

enlistment  in  foreign  service,  1564. 

equipping  vessels,  1565-1567. 

expeditions,  1568. 

foreign  enlistments,  1564. 

laws  of  tbe  United  States,  1563-1573. 

military  expeditions,  1568. 

President,  powers  of,  1569-1573. 

rights  of,  enforcement,  1569-1573. 
New  Mexico: 

peonage  abofished  in,  1549, 1550. 
Newspapers : 

restriction  on  purchase  of,  46, 122. 
New  Tear's  Day.     (See  Holidays.) 
New  Tork  Harbor : 

arrests,  847. 

anchorage  grounds,  850-851. 

boats  to  have  names,  etc.,  on  side,  839. 

deposits  in,  835-847. 
certain,  prohibited,  835. 
places  of,  to  be  designated,  837,  838. 
where  to  be  made,  837,  843. 

disposal  of  refuse  and  dredged  material,  843. 

fishing  in  ship  channels  prohibited,  845,  846. 

naval  officer,  detail  of,  as  supervisor,  844. 

officers  of  boats,  penalty  for  unlawful  deposits, 
826. 

penalties  for  unlawful  deposits,  835,  836,  838,  841, 
846. 

supervisor,  duties,  837-847. 
Non-commissioned  Staff  (see  Enlisted  Men) : 

commissary -sergeants,  579. 

hospital  stewards,  674-676. 

pay,  638-660. 

post  quartermaster-sergeants,  538. 

rations,  580-586. 

Non-competitive  Examinations.    (See  Civil  Serv- 
ice.) 

Northern  Pacific  Railroad,  1559, 
Notaries  Public: 

administration  of  oaths,  121. 


Oaths : 

administration  of,  32-34, 121, 259, 531. 

attorneys  prosecuting  claims,  198, 199. 

clothing  accounts,  settlement  of,  74. 

court-martial,  judge- advocate,  85  A.  W. 
member,  84  A.  W. 
witness,  92  A.  W. 

Court  of  Claims,  310. 

court  of  inquiry,  members  and  recorder,  1340. 

enlistment,  361, 2  A.  W. 

form  of,  107, 258,  367,  2  A.  W. 

naturalization,  1367. 

no  salary  until  sworn,  110. 

notaries  public  may  administer,  121. 

of  office,  34, 104-106. 

of  participants  in  rebellion,  106-107. 

postmasters,  258,  259. 
administered  by  any  officer,  259. 

preservation  of,  108. 

profane,  penalty,  53  A.  "W. 
Occasions  of  Ceremony,  Uniform,  etc.,  1004. 
Occupied  Territory: 

courts  in,  2,  note  2. 

government  in,  2,  note  2,  pp.  780-782. 
Offenders : 

surrender  of,  to  civil  authority,  59  A.  W. 
Office  (see  Officers  and  Commissioned  Officers) 

appointments  to,  4,  note. 

confirmation,  4. 

definition  of  term,  4,  note. 

duties,  4,  note. 

giving  money,  or  consideration,  for,  124. 

removal  of  location,  119. 

resignation,  4,  note. 

tenure,  4,  note. 
Officers  (see  Office  and  Commissioned  Officers) : 

additional  pay  forbidden,  114. 

appointment,  4,  note. 

assessments,  etc.,  forbidden,  127. 

Biennial  Register,  lists  for,  53. 

commissions,  116, 940. 

confirmations,  4. 

counsel  in  prosecution  of  claims,  not  to  act  as,  44. 

delinquent  in  accounts,  148. 

discretionary  duties,  6,  note. 

double  salaries,  112. 

duties,  4,  note. 

estimates  for  salary,  168. 

extra  compensation,  112, 113. 

horses  lost,  claims  for,  207-215. 

in  arrears,  salary  not  payable,  115. 

liability  for  damages,  6,  note. 

ministerial  duties,  6,  note. 

oath,  104-111. 

powers,  4,  note. 

presents  to,  from  subordinates,  forbidden,  127. 

presumption  as  to  official  acts,  4,  note. 

resignation,  4,  note. 

salary  not  payable  to,  until  sworn,  110. 
holding  over,  111. 

tenure.  4,  note. 
Official  Acts: 

presumptions  as  to,  4,  note. 
Official  Letters: 

free  delivery  of,  264-267. 


INDEX. 


835 


Open-Market  Purchases.     (See  Contracts  and.  Pur- 
chases.) 
Opinions  of  Attorneys-General  (272,273,275,277, 

281): 

periods  covered  by,  281,  note. 
Orders  (516,  note) : 

disobedience  of,  21  A.  TV. 

Ordnance  and  Fortifications.     (See  Board  of  Ord- 
nance and  Fortification.) 

Ordnance  Department  (see  Staff  Departments) : 
accountability  for  property,  869-870. 
ammunition,  858. 

issues  to  Executive  Departments,  912a. 
appointments,  455,  856. 
appropriation  for  arming  militia,  etc.,  available 

until  expended,  1283, 1284. 
armories — 

employees,  896-898,  902,  903,  905. 
jury  duty,  exemption  from,  905. 

master  armorers,  896-898. 

paymasters,  864. 

workmen,  896-898,  902,  903. 
arms,  armories,  and  arsenals,  896-912a. 
arms,  issues  to  Executive  Departments,  912o. 

District  militia,  1287. 

militia,  904,  912, 1279-1285. 
arsenals,  896-91 2a. 

abolition  of  useless,  900. 

paymasters,  864. 

workmen,  896-898,  902,  903. 
artificers,  detail  of,  to  regiments,  868. 
assistant  to  chief,  862. 

Board  of  Ordnance  and  Fortification,  877-887. 
breech-loading  small  arms,  906-911. 
calibers  of  ordnance  to  be  determined,  etc.,  889. 
cannon,  donations  of,  876. 
Chief  of  Ordnance- 
appointed  from  corps,  455. 

contracts  and  purchases,  858, 1177. 

depots,  860. 

duties,  858-861,  867, 870. 

estimates,  858. 

rank,  856. 

reports  of  personnel,  861. 

supplies,  858, 859, 1177. 
clerical  force,  64,  873,  note. 

condemned  cannon,  etc.,  disposition  of,  873-876. 
contracts  and  purchases,  858, 872. 
depots,  860. 

disposal  of  unserviceable  stores,  etc.,  873-876. 
distribution  of  arms  to  militia,  904, 912. 
District  of  Columbia  militia,  issues  to,  1287. 
duties,  858-861. 

emergency  purchases,  872, 1177. 
enlisted  men  (see  Enlisted  Men),  865-868. 

corporals,  867. 

extra-duty  pay  not  allowed  to,  555. 

number  fixed  by  Secretary  of  War,  867. 

ordnance  sergeants,  865-866. 

privates,  867. 

sergeants  of  ordnance,  867. 
Executive  Departments,  arms,  etc.,  for,  912a. 
forgings,  888. 

fortification  board,  877-887. 
inventions,  no  money  to  be  expended  in  perfect- 
ing, 908. 
issues,  859,  860,  912a. 


Ordnance  Department— Continued. 

magazine  small  arms,  909-911. 
militia,  arms,  etc.,  for,  904,  912. 
national  armory,  896,  899,  901-903. 
obsolete  stores,  etc.,  sales  of,  491-494, 873-875. 
officers — 
appointment,  856. 
assistant  to  chief,  609. 
examinations  for  promotion,  856, 857. 
number,  856. 
promotions,  856,  857. 
rank,  856, 863. 

storekeepers,  856,  note ;  863, 864. 
open -market  purchases,  1177. 
ordnance  sergeants,  865-866. 

storekeepers,  856,  note ;  863, 864. 
organization,  856. 
paymasters  at  arsenals,  864. 
principal  assistant  to  chief,  862. 
proceeds  of  sales,  491, 493, 494,  873-875. 
procurement  of  supplies,  858, 872. 
promotions,  457-462, 856, 857. 
property,  accountability,  869-870. 
purchases  in  open  market,  872. 

reports  of,  872, 1177. 
sales,  disposition  of  proceeds,  491-494,  873-875, 

891. 
States,   issues  of   arms,   ammunition,   etc.,  to 

1290, 1291. 

storekeepers,  856,  note;  863,  864. 
stores,  accountability,  869-870. 

proceeds  of  sales,  873-875. 
supplies,  purchases,  872. 
Territories,  issues  of   arms,  ammunition,  etc., 

1290,1291. 

testing  machine,  892-895. 
tests,  cannon,  877, 880-882, 885-888, 890. 

small  arms,  909-911. 
Ordnance  Sergeants : 
appointment,  865. 
duties,  865. 
fuel,  571,  note, 
pay,  638-660. 
qualifications,  866. 
rations,  580-586. 
selection,  866. 
Organizations : 
returns  of,  519,  note, 
tactical,  452. 
Territorial,  452,  note. 

Outdoor  Belief  (see  Soldiers'  Home),  1725. 
Oxen.     (See  Animals.) 
Pacific  Coast : 

advertising  on,  etc.,  1158. 
Pacific  Railways,  1558-1561. 
Pack  Animals.    (See  Animals.) 
Papers : 

useless,  disposition  of,  82,  note. 
Pardoning  Power : 
limitations  upon,  2,  note, 
time  of  exercise,  2,  note, 
vested  in  President,  2,  note. 
Pardons  (see  Pardoning  Power) : 
commutation,  2,  note, 
conditional  pardons,  2,  note, 
delivery  and  acceptance,  2,  note. 


83(5 


INDEX. 


Pardons— Continued, 
mitigation,  2,  note, 
pleading,  2,  note. 
Parks,  National  Military : 
Antietam  Battlefield,  1825-1829. 
Army  may  use,  for  maneuvers,  1781, 1782. 
Chickamauga  and  Chattanooga,  1783-1799. 
Gettysburg,  1790-1814. 

militia  may  use,  for  maneuvers,  etc.,  1781-1782. 
Shiloh,  1815-1824. 
Pay  (see  Pay  Department) : 
clerks,  25. 

enlisted  men,  638-661. 
messengers,  25. 
officers,  608-623. 
Pay  Department : 
absence- - 

pay  during,  621-623. 

sickness,  621. 

with  leave,  621, 622. 

without  leave,  621,  623. 
additional  paymasters,  599. 
allowances  in  addition  to  pay  forbidden,  613. 
appointments,  597. 
assignments  of  pay  of  enlisted  men  forbidden, 

650. 

assistant  paymasters,  general,  597. 
bond-aided  roads,  552. 
bonds,  466-477,  51 5,  605. 

inspection  of,  515. 

renewal  of,  515,  605. 
brevets,  no  additional  pay,  612. 
captivity,  payment  during,  647. 
check,  payments  by,  607. 
clerical  force,  64. 
clerks,  salary,  604. 

noncommissioned  officers  as,  604. 
collections  for  stores  sold  on  credit,  658-660. 
command  of  officers,  598. 
commutation  of  quarters,  625-629. 

payable  during  temporary  absence  in  field,  628. 

rates  of  commutation,  625-627. 
continuous-service  pay,  644-645. 
deceased  officers,  993,  note, 
deposits,  654-657. 

deputy  pay  masters- general,  597, 602. 
duties,  599, 601-603,  606,  607. 
enlisted  men,  pay,  638-650. 

absence  without  leave,  forfeiture  of  pay,  1061. 

allowances  on  retirement,  646, 1027. 

assignments  of  pay  forbidden,  650. 

cadets,  1109. 

certificates  of  merit,  1008, 

checks,  payments  by,  607. 

commutation  of  quarters,  646. 

deposits  forfeited  by  desertion,  654, 1044, 1061. 

rates,  638. 

re-enlistments,  643, 1021-1025. 

retained  pay,  639-642. 

retired,  646, 1026-1027. 
allowances,  646, 1027. 
pay,  646. 

Soldiers'  Home,  deduction  for,  642, 1730. 

stoppages.  636,  637. 
final  payments,  993,  note. 
Indian  scouts,  648. 
land-grant  railroads,  552, 631. 


Pay  Department — Continued, 
longevity  pay,  614-618. 
matrons  in  hospitals,  649. 
mileage,  payable  by,  633. 

rates,  630-635. 

monthly  payments  to  officers,  611. 
mounted,  pay,  610. 
nurses,  649. 
officers — 

aids  to  brigadier-general,  608. 
major-general,  608. 

assistant  to  Chief  of  Ordnance,  609. 

brevets,  no  additional  pay  for,  612. 

credits  for  longevity,  614-618,  983. 

deceased,  final  payments,  993,  note. 

discharged,  991. 

longevity  service,  614-618,  983. 

monthly  payments,  611. 

mounted,  610. 

ordnance,  principal  assistant,  609. 
storekeepers,  608. 

retired  pay,  619,  620, 984. 

stoppages,  636,  637. 

supernumerary  officers,  discharge  of,  991. 

rates  of,  to  officers,  608. 

to  appear  in  Army  Register,  433. 
officers,  pay  of,  608-623. 
organization,  597. 
pay  and  allowances,  608-623. 
paymasters,  597. 

paymasters'  clerks,  appointment,  604. 
payments,  602, 603,  606,  607. 
quarters,  commutation  of,  625-629. 
recruits,  credit  to,  at  depots,  651. 
reenlistment  pay,  643. 
retained  pay,  639-643. 
retired  pay — 

enlisted  men,  646. 

officers,  619. 
stoppages,  658-660. 

sales,  658-660. 

subsistence,  658-660. 
sureties.  605. 

tobacco,  collections  for  sales  of.  660. 
transfers,  631. 

transportation  in  kind,  631. 
travel  allowances.  630-635. 

discharged  officers,  635. 

discharged  soldiers,  653. 

expert  accountant,  634. 

mileage,  630-635. 
by  whom  paid,  633. 
computation  of,  630,  631. 
rates,  631. 
shortest  usually  traveled  route,  630,  631. 

paymasters'  clerks,  634. 

transportation  in  kind,  631. 
volunteers,  payments  to,  661. 
waiting  orders,  621 . 
Avholly  retired  officers,  pay  of,  620. 
Paymaster-General : 
appointed  from  corps,  455. 
rank,  597. 

Paymasters'  Clerks  (see  Pay  Department)  -. 
appointment,  604 
mileage,  634. 


INDEX. 


837 


Paymasters'  Clerks— Continued, 
number,  604,  note, 
pay,  604. 

travel  allowances,  604. 
Payments : 

conclusive  on  payee,  when,  143. 
decisions  respecting,  by  Comptroller,  136. 
to  troops,  606, 607. 
Penalty  Envelopes,  60,  264, 265. 
Pension  Commissioner  (see  Pensiont) : 

office,  389, 390. 
Pensions: 

accrued  pensions  of  decedents,  1664-1666. 
army  nurses,  1641-1642. 
arrears  of,  1643-1652. 
assignments,  1695-1696. 
attachment,  etc.,  prohibited,  1696. 
attorneys'  fees,  1667-1673. 
checks,  1677-1678. 

duplicate,  1684. 

mailing,  to   constitute   payment   in    certain 

cases,  1678. 
children,  1617-1625. 

legitimacy  of,  1619. 
clerks,  officers,  etc.,  not  to  be  interested  in  claims 

for,  1654. 

commencement  of,  1643, 1652. 
continuance  of,  1702. 
decedents,  pensions  of,  1664-1666. 
declarations  and  evidence,  1655-1663. 
dependent  pension  law,  1637-1640. 
dependent  relatives,  1627-1629. 
disabilities,  rates  for,  1600-1613. 
disloyalty  of  claimant,  1709, 1710. 

no  bar,  when,  1710, 1711. 
duplicate  checks,  1684. 
embezzlement,  1700, 1712. 
enlisted  men- 
civil  service,  may  enter,  1706. 

not  deemed  deserters,  when,  1707. 

on  active  or  retired  list,  not  entitled  to,  1704, 
1705. 

period  of  service,  1616. 

rates  for  special  disabilities,  1600-1613. 
evidence  in  pension  cases,  1655-1663. 
exempt  from  levy,  attachment,  etc.,  1696. 
false  claim,  1655. 
fees, 1667-1673. 

fiduciary  agent,  embezzlement  by,  1700, 1712. 
general  pension  law,  1594-1616. 
guardian,  embezzlement  by,  1700, 1712. 
Indian  wars,  1635-1636. 
investigations,  1697-1699. 
limitation,  removal  of,  1653. 
line  of  duty,  1596. 
marriages,  proof  of,  1621. 
Members  of  Congress,  officers,  etc.,  not  to  be 

interested  in,  1654. 
Mexican  war,  1633-1634. 
mininmm  rate,  1708. 
officers — 

on  active  or  retired  list,  not  entitled  to,  1704, 
1705. 

rates  for  permanent  disability,  1597. 
special  disability,  1600-1613. 

sick  leave,  how  reckoned,  1615. 


Pensions— Continued, 
one  pension  to  claimant,  1701. 
payment  of,  1674-1683. 
mailing  check,  1678. 
presumptions  as  to  citizenship,  1659. 
death,  1660. 
disability,  1661. 
legitimacy  of  children,  1619. 
proof  of  citizenship,  1659. 
death, 1660. 
disability,  1661. 
legitimacy  of  children,  1619. 
rank,  pensions  according  to,  1598. 
rates  for  special  disabilities,  1600-1613. 
under  dependent  pension  law,  1637. 
under  general  law,  1597. 
widows,  children,  etc.,  1617-1620, 1638. 
relatives,  dependent,  1627-1629. 
special  examinations,  1685-1692. 

fees,  etc.,  1693-1694. 
suspension  of,  1713. 
total  disability,  rates  for,  1597. 
unclaimed,  1664-1666. 
under  special  acts,  1630-1632. 
vested  right,  1713. 
widows  and  children,  1617-1626. 

marriages,  1621 . 
withholding,  1703. 
Peonage : 

abolished  in  New  Mexico,  1549-1550. 
Permanent  Appropriations: 
bounties,  180. 
horses  lost,  etc.,  180. 
National  Homes,  etc.,  180. 
Soldiers'  Home,  180. 
Physical  Examinations,  459, 941. 
Police,  Indian.    (See  Indians.) 
Political  Assessments  and  Contributions,  97-101, 

128. 
Poor  Debtors: 

discharge  of,  191, 192. 
Portland,  Oreg. : 

advertising  in,  539, 1158. 
Posse  Comitatus  Act,  1562. 
Postage: 
rates  of,  261. 

stamps,  how  obtained,  59. 
Post  Bakeries,  541, 1173, 1223. 
Post  Chaplains.     (See  Chaplains.) 
Post  Commissary-Sergeants.     (See  Commissary- 
Sergeants.) 

Post  Exchanges,  1174, 1224-1225. 
Post  Gardens,  1173, 1174. 
Post  Messes,  1174. 
Postmaster-General : 
oath  of  office,  258. 
office, 257. 
Postmasters : 
oath  of  office,  258. 
may  be  administered  by  officers  of  the  Army, 

259. 

Post-Office    Department  (see   Executive  Depart- 
ments) : 

envelopes  for  Executive  Departments,  268. 
establishment  of,  257. 
franking  privilege,  264-267. 


838 


INDEX. 


Post-Office  Department— Continued. 

mail  matter,  classification,  260. 
penalty  envelopes,  264-267. 
postage,  rates  of,  261. 
registry  of  official  letters,  267. 
Post  Quartermaster-Sergeants  (see  Quarterman- 

ter's  Department) : 
appointment,  538. 
duties,  538. 
fuel,  571,  note, 
number,  538. 
pay  an  d  allowances,  538. 
qualifications,  538. 
quarters,  538, 571,  note, 
rations,  538,  580-586. 
Posts: 

bakeries,  1173, 1223. 
barracks,  permanent,  1216. 
beer,  sales  of,  at  exchanges,  1225. 
buildings,  construction  of,  1 216. 
estimates,  1216, 1218. 
expenditures  on,  limited  to  $500, 1218. 
exchanges,  1174, 1224, 1225. 
buildings,  1224. 

expenditures  on,  prohibited,  1224. 
transportation  for,  1224. 
wine,  sales  of,  1225. 
gardens,  1173, 1174. 
grounds,  1218. 

limit  of  expenditure,  1172, 1218. 
liquor,  sales  of,  at  exchanges,  1225. 
messes,  1174. 

schools,  supplies  for,  1173, 1222. 
title  papers  to  lands,  1216. 
traders,  1219-1221. 

discontinued,  1221. 
trading  establishments,  1219-1221. 
wine,  sales  of,  at  exchanges,  1225. 
Post  Schools,  1173, 1222. 
Post  Traders,  1219-1221. 
Powers  of  Attorney,  196. 
Premium  for  Enlistment,  1019. 
Premium  oil  Funds  to  be  Accounted  For,  483. 
Presents  to  Superiors  Forbidden,  127. 
President  (see  Executive  Departments) : 
appointing  power,  4. 
Army  Regulations,  429-430. 
Attorney-General,  opinions  of,  272. 
brevets,  995-1003. 

assignments  to  command,  448, 1000, 1001. 
certificates  of  merit,  1008. 
citizens,  protection  of,  abroad,  1365,  1366. 
civil  rights,  enforcement,  1536-1548. 
civil  service,  83,103. 
clothing,  prescribed  by,  562. 
commander  in  chief,  2,  note  2. 
commissions  to  officers,  116,  900. 
convening  authority,  1299, 1300. 
courts-martial — 
appointing  power,  1299, 1300. 
reviewing  authority,  1314-1321. 
courts  of  inquiry,  1338-1343. 
dismissal  of  officers,  956. 

restoration  of  dismissed,  955, 957. 
dismounted  cavalry,  1074. 
disrespectful  words  to,  19  A.  "W. 


Pre  sident— Continued . 

District  of  Columbia  militia,  1286,  (1-63). 
elective  franchise,  1551, 1552. 
employment  of  military  force,  1501-1585. 
engineer  officers,  assignments  to  command,  464, 

967. 
examinations  for  promotion,  rules  for,  941-943, 

946-949. 

executive  powers,  1. 
extradition,  1574-1576. 
force,  military,  employment  of,  1501-1593. 
forest  reservations,  1858. 
Indian  scouts,  439, 440. 
Indians  and  Indian  Affairs,  1380-1500. 
regulations  for,  384. 
reservations,  removal    of    trespassers,  1508- 

1513. 
Indians,  prohibition  of,  trading  with,  1467. 

superintendence,  1445. 
insurrection,  1501-1504. 

suppression  of,  1501-1504. 
intercourse  act,  1514-1535. 
invasion,  1505-1507. 
lands,  acquisition  of,  1204-1209. 
assent  of  States  to  purchases  of,  1206. 
cession  of,  1204-1206. 
disposal  of,  1199, 1200, 1211-1214. 
patents,  376. 

releases  of  interests  in,  1207. 
removal  of  trespassers,  1554. 1555. 
light  batteries,  1077. 
Marine  Corps,  regulations,  366. 
medals  of  honor,  1007. 
ribbons  for,  1007. 
rosettes  for,  1007. 

military  force,  employment  of,  1501-1593. 
militia,  calling  out  of,  in  case  of  invasion,  etc.. 

1256-1262, 1505, 1506. 
period  of  service,  1262. 
returns,  1250. 

naturalized  citizens,  protection  of,  1365, 1366. 
neutrality  laws,  enforcement,  1563-1573. 
pardoning  power,  2,  note, 
peonage  in  3srew  Mexico,  1549, 1550. 
proclamation  to  insurgents,  1504. 
quarantine  laws,  enforcement,  1553. 
regulations—     t 
army,  429-430. 

civil  service,  83,  87, 88,  note,  89-103. 
Indian,  384. 
Marine  Corps,  366. 
Washington  Aqueduct,  733. 
reservations,  Indian,  removal  of  trespassers, 

1508-1513. 
military,  1201,  note. 

restoration  of  dismissed  officers,  956, 957. 
retirement  of  officers,  964-985. 
retiring  boards,  968-978. 
statutes,  revision  of,  395, 412. 
Superintendent  of  State,  War,  and  Navy  Build- 
ing, 82. 

term  of  office,  1, 3. 

Thanksgiving  Day,  designated  by,  35. 
treaty-making  power,  4. 

trespassers  on  public  lands,  removal  of,  1554, 
1555. 


INDEX. 


839 


President— Continued. 

uniform  prescribed  by,  562. 

war  powers,  2,  note. 
Principal  Musicians  (see  Enlisted  Men) : 

artillery,  1075. 

infantry,  1078. 
Printing : 

estimates  for,  167. 
Prison: 

military,  525. 
Prisoners: 

confinement.  1293-1297. 

escape,  1298. 

imprisonment,  limitation,  1294. 

officer  in  cbarge  of,  duties,  1296-1298. 

provost-marshals,  etc.,  duty,  1296-1298. 

refusal  to  receive,  1296. 

release  without  authority,  1298. 

report,  1297. 
Priyate  Property : 

claims  for,  215. 

protection  of,  pp.  784-786. 
Pri?ates  (see  Enlisted  Men) : 

artillery,  1076, 1077. 

cavalry,  1072. 

engineers,  702. 

Hospital  Corps,  673. 

infantry,  1079. 

ordnance,  867. 

Proceeds  of  Sales  (see  Sales),  490-494. 
Profane  Oaths,  53  A.  W. 

Promotions  (see  Sta/ Departments,  Commissioned 
Officers,  and  Enlisted  Men) : 

Adjutant-General's  Department,  455,  457,  516. 

cadets,  944,  945, 1110. 

Engineer  Department,  455,  457,  698-700. 

enlisted  men,  946-949. 

examinations  for,  458, 941. 

history  of,  939,  note. 

Inspector-General's  Department,  455, 457,  520. 

Judge- Advocate-General's  Department,  457, 528. 

line,  938. 

lineal  in  arms  and  corps,  457, 938. 

Medical  Department,  457,  662, 654, 665,  666. 

officers,  457, 458, 938, 941-943. 

operation  of  law. 
Engineer  Department,  699. 
Medical  Department,  665. 
Ordnance  Department,  857. 

Ordnance  Department,  455, 457, 856, 857. 

Pay  Department,  455, 457. 

Quartermaster's  Department,  455, 457. 

rule  of,  457, 458, 938. 

Signal  Department,  457, 916. 

Subsistence  Department,  455, 457. 
Property: 

accountability,  1226-1237. 

acquisition  of,  1226-1228. 

captured,  1228. 

Congress,  power  of,  to  regulate,  1226. 

cost  of  repairs,  charges,  1235. 

damaged,  1234-1236. 
disposition  of,  1236. 

damage  to,  1234. 

deficiencies,  stoppages  for,  636, 637. 

destroyed  in  service,  claims  for,  215. 


Property— Continued. 

destruction  of,  penalty,  55  A.  W. 

disposal  of,  1226, 1236. 

inspection  of  damaged  articles,  1236. 

lost  in  service, 208, 215.     ' 

protection  of,  912a. 

purchase  of,  1227. 

safe-keeping  of,  1227. 

sales  of,  873-876. 

stoppages  for  deficiencies,  636, 637. 

unsuitable  or  damaged  articles,  disposition,  1236. 

waste  of,  penalty,  55  A.  W. 
Property  Accountability  (see  Property) : 

administration  of  oaths,  73,  74, 1237. 

affidavits,  1237. 

captured  property,  1228. 

certificates  of  loss,  1230, 1231. 

charges  against  officers,  1230, 1231. 

company  commander,  73, 74, 1229. 

cost  of  repairs,  charges,  1235. 

damage,  deficiency,  etc.,  1234, 1235. 

loss  of,  or  damage  to,  oaths,  etc.,  531, 1237. 

methods  of  accounting,  1232, 1233. 

oaths,  administration  of,  531, 1237. 

officers,  charges  against,  1230, 1232. 

Ordnance  Department,  869, 870. 

Quartermaster's  Department,  573. 

regulations  respecting,  to  be  prepared  by  Secre- 
tary of  War,  1227, 1233. 

returns,  1230, 1232. 

Signal  Department,  922, 923. 
Proposals  (see  Contracts  and  Purchases)  -. 

American  materials,  preference  for,  1163. 

annual  reports  of,  79. 

award,  1162, 1165, 1166. 

bonds  to  accompany,  1161. 

conditions  of  award,  1165-1166. 

cumulation  of  bids  in  river  and  harbor  work, 
807, 1160. 

lowest  responsible  bidder,  1165. 

notice,  1162, 1165. 

notifications  of  opening,  1162. 

opening,  1162. 

separate  bids  required,  1159. 
Proving  Ground  at  Sandy  Hook,  881,  882. 
Provost-Marsha^ 

refusal  to  receive  prisoner,  1296,  67  A.  "W. 
Public  Animals.     (See  Animals.) 
Public  Buildings  (see  Lands,  Contracts  and  Pur- 
chases, and  Public  Buildings  and  Grounds) : 

appropriations  for,  not  to  be  exceeded,  512, 1147. 

closing,  in  memory  of  deceased  ex-official  pro- 
hibited, 58. 

cost,  not  to  exceed  appropriation,  512, 1147. 

draping,  in  mourning  prohibited,  57. 

limitation  on  expenditures,  3 172. 

pipes  and  mains  to,  in  Washington,  738. 
Public  Buildings  and  Grounds  (see  Public  Build- 
ings) : 

Chief  of  Engineers,  duties  respecting,  714. 

compensation  of  officer  in  charge,  716,  note, 
employees,  716, 720. 

estimates,  715. 

greenhouses,  plants,  trees,  shrubs,  etc.,  717. 

inventory,  719. 

lands,  reservations,  etc.,  plans  of,  741. 


840 


INDEX. 


Public  Buildings  and  Grounds— Continued. 

officer  in  charge,  716,  note. 

plans,  records,  etc.,  741. 

propagating  gardens,  717. 

reports,  718. 

reservations,  lands,  etc.,  plans,  741. 

trees,  shrubs,  etc.,  717. 
Public  Exigency,  1151,  note. 
Public  Funds  (see  Accounts) : 

accounts  of,  232, 233, 495, 496. 

custodians,  duties,  249. 
1     deposited,  where,  228, 229. 

disbursements,  249. 
1     loaning  forbidden,  249. 

mints,  223, 224. 

safe-keeping,  228, 229,  249. 
subject  to  draft  of  Treasurer,  251. 

suits  to  recover,  234. 

transfers  of,  by  Secretary  of  Treasury,  250. 

Treasurer,  216-221. 

Public  Health  (see  Quarantine),  1553. 
Public  Holidays,  35, 36, 37. 
Public  Lands: 

acquisition,  1204, 1208, 1209. 

condemnation,  1208, 1209. 

consent  of  States  to  acquisition,  1206. 

inclosure  of,  prohibited,  1554. 

jurisdiction  over  reservations,  1210. 

lands  not  subject  to  preemption,  1200. 

leases,  1215. 

mineral  lands,  1200. 

mines,  1200. 

pre-emption,  1199. 

procedure  iu  condemnation,  1208, 1209. 

purchase  of,  restriction,  1205. 

releases, 1207. 

reservations  not  subject  to  preemption,  1200. 

rights  of  way,  1202, 1203. 

salines,  1200. 

sale  of  abandoned  reservations,  1211-1214. 

timber  depredations,  1554. 

titles  to,  examination  of,  1204. 

trespassers,  removal  of,  1555. 

unlawful  inclosures  of,  1554. 
Public  Office.    (See  Office.) 
Public  Officers.     (See  Officers.) 
Public  Printer: 

departmental  estimates,  167. 
reports,  furnishing  of,  51. 

documents,  copies  of,  etc.,  51. 
Public  Property  (see  Property  and  Property  Ac- 

countability),  1226-1237. 
Public  Works  (see  Engineer  Department) : 

bridges,  816-819. 

canals,  etc.,  813-815. 

contracts,  etc.,  806-812. 

estimates  for,  169, 712. 

harbor  lines,  820-822. 

injuries  to,  823-834. 

plans,  169. 

river  and  harbor  works,  794-805. 
Punishments  (96-101  A.  W.) : 

approval  of.  103  A.  "W. 

limits  of,  p.  704. 

prohibited,  98  A.  W. 
Purchases  (see  Contracts  and  Purchases) : 

advertising,  1151, 1154-1164. 


Purchases— Continued. 

American  materials,  preference  for,  883, 1163. 

animals,  546-549, 1167- 1171. 

appropriations,  not  to  be  exceeded,  1146, 1147. 

artillery  horses,  548, 549. 

bakeries,  1173. 

cavalry  horses,  548, 548. 

emergency,  1151. 

exchanges,  1174. 

Executive  Departments,  1152, 1153. 

exigency,  1151. 

gardens,  1174. 

general  rule,  1151. 

horses,  548, 549, 1167-1169. 

immediate  delivery,  1151. 

marking  of  supplies,  1178. 

medicines,  etc.,  1176. 

messes,  1173. 

open-market,  limit,  1166. 

Ordnance  Department,  1177. 

proposals,  1159-1163. 

public  exigency,  1151,  note. 

schools,  1173. 

Subsistence  Department,  591. 

where  made,  1166. 

without  advertisement,  694, 872. 
Quarantine : 

enforcement  of,  1553. 
Quarrels,  Frays,  etc.,  24  A.  W. 
Quartermaster-General : 

absence,  succession  during,  465. 

appointed  from  corps,  455. 

artificial  limbs,  etc.,  686, 687. 

duties,  535,  536. 

post  quartermaster-sergeants,  selection,  538. 

rank,  533. 
Quartermaster-Sergeants  (see  Enlisted  Men) : 

artillery,  1075, 1076. 

cavalry,  1071, 1072. 

engineers,  702. 

infantry,  1078, 1079. 

post,  538. 
Quartermasters : 

artillery,  1075. 

cavalry,  1071. 

engineer  battalion,  702. 

infantry,  1078. 

staff,  533. 

Quartermaster's    Department  (see  Staff  Depart- 
ments) : 

advertising,  539,  540. 

American  productions  favored,  1158. 

animals,  number  of,  546-549. 
purchase,  546-549. 

appointments,  456. 

artificial  limbs,  transportation,  686,  687. 

assistant  quartermasters,  533. 

assistant  quartermasters-general,  533. 

awards,  540. 

bakeries,  541. 

bond-aided  railroads,  552. 

buildings,  569, 570, 1172, 1218. 

cavalry  horses,  purchases  of,  548, 549. 

civilian  employees,  553,  554. 

claims,  164. 

clerical  force,  64. 

clothing,  561, 568. 


INDEX. 


841 


Quartermaster'  N  Department— Continued, 
clothing— Continued. 

accounts,  563,  564. 

alterations  of,  567,  568. 

gratuitous  issues,  565. 

construction  of  buildings,  569, 570, 1217, 1218. 
deputy  quartermasters-general,  533. 
draft  animals,  546. 
duties,  535. 

emergency  purchases,  540. 
employes,  compensation,  553,  554. 

number,  553,  554. 
enlisted  men,  538. 
erection  and  repair  of  buildings,  569, 570, 1172, 

1218. 

examination  of  claims,  164,  note, 
exchanges,  542. 
extra  duty,  555-558. 
forage,  559, 560. 

allowances,  559,  note. 

to  militia  in  active  service,  1267. 
fuel,  559,  560. 

allowances  of,  571,  note. 

sales,  to  officers,  559. 
funeral  expenses  of  officers,  993,  note. 

enlisted  men,  1070,  note, 
gardens,  541, 542. 
horses, 546-549. 
land-grant  railroads,  552. 
lockers,  571,  note, 
messes,  541. 

methods  of  purchase,  539-543. 
military  storekeepers,  534. 
miscellaneous  supplies,  purchases,  540. 
mules,  547. 

munitions  of  war,  transportation  of,  544. 
naval  detachments,  550. 
organization,  533. 

Pacific  Coast,  advertising,  539, 1158. 
pack  animals,  number,  5J6. 
post  quartermaster-sergeants,  538. 

appointment,  538. 

duties,  538. 

fuel,  538. 

number,  538. 

pay  and  allowances,  538. 

qualifications,  538. 

qviarters,  571,  note. 

rations, 538,  580-586. 
printing,  543. 

procurement  of  supplies,  535,  539-543, 1165-1178. 
property  accountability,  573, 1227-1237. 
purchases,  535, 539, 540-543, 1165-1178. 
Quartermaster-General— 

absence,  succession  during,  465. 

appointed  from  corps,  455. 

artificial  limbs,  etc.,  686,  687. 

duties,  535, 536. 

post  quartermaster-sergeants,  selection,  538. 

rank,  533. 

quartermasters,  533. 
quartermaster-sergeants,  538. 
quarters,  569-572. 

allowances  of,  559, 560,  571,  note ;  572. 

assignment  of,  571,  note. 

choice,  571,  note. 

command  in,  443. 


Quartermaster's  Department— Continued. 
quarters — Continued. 

commutation  of,  625-629. 

construction  of,  569,  570. 

selection  of,  571,  note, 
regular  supplies,  purchases,  540-542. 
school  supplies,  541. 
subsistence  duty,  537. 
supplies,  procurement  of,  69,  535,  539-543,  1165- 

1178. 
transportation,  535, 544-552,  686,  687,  993, 1070. 

artificial  limbs,  686,  687. 

deceased  officers,  993,  note, 
soldiers,  1070,  note. 

Executive  Departments,  etc.,  551. 

officers,  545. 

procurement  of,  544-552. 

regulated  by  Secretary  of  War,  69, 70. 

troops,  544. 

Quartermasters,  Regimental,  1071, 1075, 1079. 
Quartermaster  Stores : 
claims  for,  164,  note. 
Quarters : 

allowance  of,  571,  note, 
commutation  of.  625-629. 
Quitting  Guard,  etc. : 

without  leave,  40  A.  "W. 
Railroads : 
bond-aided,  552. 
land-grant,  552. 
Rank: 

brevet,  assignments,  etc.,  448. 
grades  of,  443,  note, 
militia,  124  A.  W. 
relative,  Army  and  Navy,  446. 
volunteer,  uniform  may  be  worn,  1004. 
volunteers  and  regulars,  444;  123  A.  W. 
Rates : 
commutation  of  quarters,  625-629. 

rations,  595,  note, 
postage,  261. 

Ration  (see  Subsistence  Department) : 
beef,  580. 
bread, 580. 

components,  580,  note, 
candles,  580,  note, 
coffee,  580. 

liquid  coffee,  580,  note, 
commutation  of  rations,  595,  note, 
components  of  ration,  580, 581. 
emergency,  580,  note, 
flour,  580. 

Indians,  issues  to,  1441. 
liquid  coffee,  580,  note, 
meat  components,  580,  note, 
militia  in  active  service,  1264. 

on  "Western  frontier,  1269. 
rations  to  Indians,  1441. 
salt,  580,  note. 

seasoning  components,  580,  note, 
soap  and  candle  components,  580,  note. 
sugar,  580. 
tea,  580. 

vegetable  components,  580,  note, 
vinegar,  580,  note. 

Rations  (see  Subsistence  Department) : 
coffee  and  sugar,  585, 586. 


842 


INDEX. 


Rations — Continued, 
commutation,  595,  note, 
components, 580, note;  581. 
cooking,  596. 
emergency,  580,  note, 
enlisted  men,  582, 583. 
extract  of  coffee,  585. 
issues,  580-584. 
matrons,  584. 
nurses,  584. 
purchases,  587-591. 
sales,  587-591. 
sugar  and  coffee,  585, 586. 
supervision  of  cooking,  596. 
travel,  581,  note. 
Receivers  of  Public  Moneys,  228. 

deposits,  where  made,  228, 229. 
Record  and  Pension  Office: 
duties,  926-929. 
hospital  records,  926. 
military  records,  926-929. 
pension  business  and  records,  926. 
States,  transcripts  of  records  for,  929. 
volunteer  armies,  records  of,  926. 
war  of  Revolution,  records  of,  927,  928. 
war  of  1812,  records  of,  927, 928. 
Records : 

certification  of,  1347-1355. 
courts-martial,  529-532, 1313. 
evidence,  1347-1355. 
Recruiting  Men  to  Serve  Against  United  States : 

penalty,  1592. 

Recruiting  Service,  516,  note. 
Recruits  (see  Enlisted  Men) : 
Articles  of  War  to  be  read  to,  2  A.  W. 
credit  to,  at  depots,  651. 
Redress  of  Wrongs: 
enlisted  men,  1324, 30  A.  W. 
officers,  29  A.  W. 
Re-enlistment  (see  Enlistment) : 
conditions,  1018, 1021-1024. 
continuous  service  pay,  1022-1024 
pay,  1022, 1023. 

service,  character  of,  1021,  note. 
Regimental  Chaplains.    (See  Chaplains.) 
Regimental  Courts  (see  Courts-Martial) : 
Regimental  Returns,  519,  note,  7  A.  W. 
Regiments : 

altering  clothing,  567, 568. 
appointments  not  made  to,  937. 
Articles  of  War  to  be  read  to,  124  A.  W. 
artillery,  1075. 
assignments  to,  939. 
cavalry,  1071, 1073. 
chaplains,  930-936. 
infantry,  1078, 1080. 
militia,  1244-1246. 
promotions  in,  938. 
returns,  519,  note ;  869, 870. 
transfers  in,  939. 
Register,  Army  (see  Army  Register  and  Biennial 

Register) : 
Biennial,  53. 
Recess  Appointments : 
notifications  of,  118. 
Registered  Letters.    (See  Post- Office  Department.) 


Regular  Army  and  >Tavy  Union : 

badge  of,  1011. 

Regulations,  Army.     (See  Army  Regulations.) 
Relative  Rank: 
officers  of  Army  and  Navy,  446. 

same  grade  and  date,  447. 
Release: 

deserters,  1066,  note. 
Releases  of  Interests  in  Land,  1207. 
Relieving  the  Enemy  (see  Treason),  45  A.  W. 
Remains  of — 
deceased  officers,  993,  note. 

soldiers,  1070,  note. 

Removal  of  Charge  of  Desertion,  1052-1067. 
Removal  of  Intruders  from  Indian  Reservations, 

1508-1513. 

Renewal  of  Bonds,  515. 
Renting  of  Buildings,  61. 
Reports  (see  Annual  Reports) : 
delinquent  disbursing  officers,  133, 148. 
refusal  to  render,  penalty,  123. 
Reproachful  Speeches,  25  A.  W. 
Requisitions : 

money,  action  of  auditors,  146. 
Reservations  (see  Public  Lands) : 
establishment  of,  p.  423,  note, 
jurisdiction  over,  1210,  note. 
Indian,  hunting  on,  prohibited,  1472. 
liquor,  introduction  of,  1474-1477. 
surveys  of,  1446. 
leases,  1215. 

liquor,  introduction  of,  on  Indian,  1474-1477. 
not  subject  to  pre-emption,  1200, 1201. 
sale  of  abandoned,  1211-1214. 
Resignation  of  Officers,  953,  954. 
Retained  Pay: 

abolished,  642 ;  1025. 
Retainers  to  Camp: 

triable  by  court-martial,  1306 ;  63  A.  W. 
Retired  Enlisted  Men  (see  Retirement  of  Enlisted 

Men) : 

allowances,  1027. 

Articles  of  War  apply  to,  1026,  note, 
clothing,  1027. 
employment,  1026,  note, 
pay,  646. 

status,  1026,  note, 
subsistence,  1027. 

Retired  List  (see  Retirement  of  Officers),  964-985 : 
enlisted  men,  1026-1027. 
limited  list,  982. 

transfers  from  limited  to  unlimited  list,  982. 
unlimited  list,  964-966. 

Retired  Officers  (see  Retirement  of  Officers) : 
Articles  of  War  apply  to,  985. 
college  details,  958-963. 
command,  979. 
duty  of,  958-963,  985-987. 
limited  list,  981. 
pay,  619. 

rank  upon  which  retired,  977. 
service  for  retirement,  983. 
Soldiers'  Home,  985. 
status  of,  979. 
territories,  office  in,  987. 
transfers  from  limited  to  unlimited  list,  982. 


INDEX. 


843 


Retired  Officers— Continued. 

uniform,  985. 

unlimited  list,  967. 
Retirement  of  Enlisted  Men : 

allowances,  1027. 
clothing,  1027. 
conditions,  1026. 
employment,  1026,  note, 
liability  to  trial,  1026,  note, 
pay,  646. 

qualifications,  1026. 
service,  1026. 
status,  1026,  note, 
subsistence,  1027. 
transportation,  1026,  note. 
Retirement  of  Officers : 
actual  rank,  retirement  on,  977. 
boards  for  retirement  of  officers,  968-978. 
credits  for  service,  983. 
discretionary  with  officer,  when,  964, 965. 
discretion  of  President,  964-967. 
forty-five  years'  service,  966. 
forty  years'  service,  964, 965. 
general  of  the  Army,  965. 
limited  list,  981. 

President,  discretionary  retirement,  967. 
qualifications  for  retirement,  964-966,  968, 983. 
rank,  977. 

retired  pay,  619,  984. 
retiring  boards,  968-978. 
service  for  retirement,  982, 983. 
sixty-four  years  of  age,  964. 
status  of,  979. 
thirty  years'  service,  964. 
transfers  to  unlimited  list,  982. 
unlimited  list,  967. 
vacancies  caused  by  retirement,  980. 
Retiring  Boards  (see  Retirement  of  Officers) : 
approval  of  proceedings,  973. 
composition,  969. 
constitution,  969. 
disability,  968-978. 
disability  incident  to  service,  972, 974. 

not  incident  to  service,  975. 
duties,  971-975. 
findings,  972. 
hearing,  976. 

incapacity,  findings  as  to,  972-975. 
medical  officers,  969. 
membership,  969. 
oath, 979. 
powers,  971-975. 
procedure,  970--975. 
Retreat: 

failing  to  retire  at  beating  of,  35  A.  "W. 
Returns  (see  Property  Accountability) : 
clothing,  573. 
false,  8  A.  W. 
militia,  1250. 
ordnance,  869-870. 
property,  1229-1233. 
refusal  to  make,  penalty,  123. 
signal  property,  921, 922. 
strength,  519. 
troops,  519;  7  A.W. 


Returns  Office: 
contracts  as  evidence,  1351. 

filing  of,  391, 1189-1191. 
copies  to  be  furnished,  394. 

fees  for,  394. 
establishment,  391. 
fees  for  copies,  394. 
index  books,  393. 
oath  to  returns,  1190. 
papers  to  accompany  contracts,  1189. 
penalties  for  failure  to  file  contracts,  1191. 
records  as  evidence,  1351. 
regulations,  1192. 
returns,  file  of,  392. 
supervision  of,  391. 
Reviewing  Authority  (see  Courts-Martial),  1314- 

1321. 

Revised  Statutes  (see  Statutes  at  Large)  -. 
accrued  rights  not  affected,  407. 
arrangement  of  matter  in,  396, 410. 
classification,  410. 

commission  for  revision  of  statutes,  396-396. 
compensation,  400. 
duties,  396, 412, 413. 
contents,  396. 
crimes,  408. 
criminal  offenses,  408. 
date  of  operation,  411. 
evidence  of  laws,  402. 
limitations,  409. 
operation  of,  411. 
penal  offenses,  408. 
printed  in  parts,  398. 
publication,  401-404. 
repeal  provisions,  406. 
revision,  completion  of,  399. 

submitted  to  Congress,  397. 
scope,  405-411. 
statutes  of  limitation,  409. 
text  of  first  edition,  396. 
Revised  Statutes,  Second  Edition : 
arrangement  of  matter,  410. 
classification,  410. 
completion,  415. 
contents,  414. 

prima  facie  evidence  of  laws,  415, 416. 
text,  413, 414. 

Revised  Statutes,  Supplements : 
contents,  417, 420,  423. 
distribution,  418, 421. 
evidence  of  laws,  419, 422. 
Ribbons  for  Medals  of  Honor,  1007. 
Rights  of  Way,  1202-1203. 

River  and  Harbor  Works  (see  Engineer  Depart- 
ment and  Navigable  Waters) : 
anchorage  grounds,  848-851. 
Chicago  Harbor,  840,  849. 
District  of  Columbia,  852, 855. 
New  York  Harbor,  850, 851. 
application  of  appropriations,  806. 
ballast,  unlawful  deposits  of,  830. 
bids,  808. 

boats,  scows,  etc.,  unlawful  deposits  by,  830. 
bridges,  alterations  in,  816,  817. 
obstruction  to  navigation,  816, 817. 
over  navigable  waters,  816-819. 
regulations  for,  817. 


844 


INDEX. 


Hirer  and  Harbor  Works— Continued, 
canals,  etc. — 

charges  for  use  of,  discontinued,  813. 

operation  of,  813-815. 

regulation  of,  813-815. 

regulations  for  use  of,  814,  815. 

tolls,  not  to  be  levied,  813. 

Chief  of  Engineers  to  direct  preliminary  sur- 
veys and  reports,  802. 
civil  engineers,  708,  709. 
commercial  statistics,  800. 
compensation   for   displacement  of   water   by 

wharves,  829. 

compilation  of  preliminary  reports,  804. 
compilation  of  projects,  804. 
condemnation  of  lands,  810. 
continuous  contracts,811, 812. 
contracts  and  purchases,  806-812. 
creation  of  obstructions,  823-833. 
cumulation  of  bids,  807, 1160. 
deposits  in,  826-830. 
deposits,  injurious,  826-828, 830. 

ballast,  830. 

New  York  Harbor,  835-847. 
displacement  of  waters,  compensation  for,  829. 
District  of  Columbia,  harbor  regulations,  852- 

855. 

drawbridges,  regulations  for,  819. 
employment  of  retired  officers,  709,  note, 
estimates,  712. 
examinations,  802, 803. 
expenditures,  806-812. 
extensions  of  wharves,  etc.,  829. 
fish  ways,  834. 
injunctions,  to  secure  removal  of  obstructions, 

824. 

injuries  to  works,  penalties,  823-830. 
jetties,  injuries  to,  823. 
lands,  purchase  of,  810. 
laws  respecting,  to  be  compiled,  805. 
libel  on  boats  making  deposits,  828. 
licenses,  masters,  pilots,  etc.,  revocation  of,  827. 
navigability,  test  of,  795,  note, 
navigable  waters  of  the  United  States,  794-799. 
obstructions  by  wrecks,  etc.,  removal  and  sale,, 
831-834. 

removable  by  injunction,  824. 

to  works,  penalties,  823-830. 
piers,  injuries  to,  823. 
preliminary  examinations,  802, 803. 

reports,  802,  803. 

procurement  of  materials  and  supplies,  806-812. 
proposals,  808. 
purchase  of  lands,  810. 
refuse,  deposits  of,  826-828, 830. 
rejection  of  bids,  808. 
removal  of  wrecks,  etc.,  831-833. 
retired  officers,  employment  of,  709,  note, 
revocation  of  licenses,  827. 
sale  of  wrecks,  etc.,  833. 
sea  walls,  injuries  to,  823. 
slabs,  sawdust,  etc.,  unlawful  deposits,  830. 
statistics  of  commerce,  800. 
stone,  earth,  etc.,  unlawful  deposits,  830. 
surveys,  preliminary,  801-804. 
test  of  navigability,  795,  note. 


Hirer  and  Harbor  Works— Continued. 

Torch  Lake,  Mich.,  act  of  September  19,  1890, 
not  to  apply,  825. 

unlawful  deposits,  826, 830. 

wharves,  injuries  to,  penalty,  823. 

works  in  navigable  waters  to  be  approved  by 
Secretary  of  War,  822. 

works  of  improvement,  injuries  to,  823-834. 

wrecks,  obstruction  by,  831-833. 

removal  of,  831-833. 
Rosettes  (see  Medals  of  Honor)  •. 

when  to  be  worn,  1007. 
Rules  of  Eridence,  1346,  note,  1347-1356. 
Saddler  Sergeants.     (See  Enlisted  Men.) 
Safeguard: 

forcing,  57  A.  W. 
Sailors : 

civil  service,  preference  to,  84, 86,  93. 

commended  for  civil  employment,  85. 

deceased,  preference  to  orphans,  24. 

discharged,  preference  to,  in  reductions,  24, 86. 
Salary: 

monthly  payments,  611. 

officer  holding  over,  111. 
in  arrears,  115. 

payable  to  officer  when  sworn,  110. 

stoppages,  636,  637. 

Sales  (see  Subsistence  Department,  Ordnance  De- 
partment, and  Medical  Department) : 

cannon  for  experimental  purposes,  891. 

disposition  of  proceeds,  490-494. 

materials,  old,  174, 491, 493,  494. 

medicines  to  employees,  693. 
National  Home,  1748. 

ordnance,  873-875. 

proceeds,  disposal  of,  490-494. 

subsistence,  exempt  from  deposit,  491, 492. 
Sandy  Hook : 

proving  ground,  881,  882. 
San  Francisco: 

advertising,  etc.,  in,  539, 1158. 
Savings  of  Enlisted  Men,  654, 657. 
Schools  (see  Pott  Schools) : 

pay  of  teachers,  555,  558. 
School  Teachers,  555, 558. 
Scouts.    (See  Indian  Scouts.) 
Seal  of  the  United  States,  1877: 

custodianship,  1878. 

Second  Trial  for  Same  Offense  Prohibited,  102 
A.  TV. 

Secretary  of  the   Interior  (see  Interior  Depart- 
ment) : 
claims,  investigation  of,  385. 

regulations  for  settlement  of,  385. 
duties,  373. 

forest  reservations,  1856-1858. 
Indian  affairs,  supervision  of,  382. 

regulations  for,  385. 
Land  Office,  supervision  of,  377. 
office,  372. 

Pension  Office,  supervision,  389. 
removal  of  persons  from  reservations,  1508-1513. 
returns  office,  supervision  of,  391. 
rights  of  way,  1202, 1203. 
rooms  for  Civil  Service  Commission,  90. 


INDEX. 


845 


Secretary  of  the  Interior— Continued. 
Territories,  duties  respecting,  374. 
Yellowstone  Park,  1830-1855. 
Secretary  of  the  Navy  (see  Navy  Department) : 
cannon,  donations  of,  876, 1795, 1824. 
office,  354. 
returns  office,  391. 
sales  of  stores,  494, 875. 

supervisor  of  deposits  in  New  York  Harbor,  840. 
Secretary  of  State  (see  State  Department)  : 
commissions,  attaching  seal  to,  1878. 
Revised  Statutes,  401-404. 
seal  of  the  United  States,  1877, 1878. 
Secretary  of  the  Treasury  (see  Treasury  Depart- 
ment) :  * 
accounting,  rules  for,  132, 152. 
Book  of  Estimates.  48, 172, 173. 
certification  of  records,  150. 
disbursing  agents,  253-256. 
estimates,  48-55, 172-174. 
expenses  of  fiscal  agents,  253. 
intercourse  in  war,  suspension  of,  1514-1535. 
office,  129. 

regulations  for  presentation  of  drafts,  252. 
report  of  delinquents,  133, 148. 
rules  for  rendition  of  accounts,  132, 135. 
transfers  of  funds  in  depositories,  250, 486. 
warrants  to  be  signed  by,  146. 
Secretary  of  War  (see  War  Department) : 
absence,  temporary,  provision  for,  8, 11. 
accounts,  rules  for  examination  of,  153. 
American  materials,  preference  for,  883, 1163. 
annual  report,  48, 49,  51,  713. 
Antietam  battlefield,  1825-1829. 
arms,  distribution  of,  to  States,  etc.,  901, 904. 

Executive  Departments,  912a. 

manufactures,  etc.,  896-912, 1277. 

militia,  purchases  for,  1277. 
Army  Regulations,  issue  of,  430. 
arsenals,  abolition  of,  900. 
Assistant  Secretary  of  War,j63. 
Attorney-General,  opinion  of,  273-274. 
battlefields,  marking  lines,  etc.,  1721-1824. 

Antietam,  1825-1829. 

Chattanooga,  1783-1799. 

Chickamauga,  1783-1799. 

Gettysburg,  1790-1814. 

Shiloh,  1815-1824. 

bridges  over  navigable  waters,  816-819. 
buildings,  construction  of,  1216-1218. 
eanals,  operation,  etc.,  813-815. 
certificatea  of  merit,  1008. 
«harts,  sales  of,  75. 

Chickamauga  National  Military  Park,  1783-1799. 
claims,  38-44. 

reference  of,  to  Court  of  Claims,  302, 303, 333. 
clothing,  gratuitous  issues,  565,  note, 
commissary-sergeants,  579. 
commissions  to  officers,  940. 
commutation  of  coffee  and  sugar  ration,  585. 
contingent  funds,  45-47,  78. 
contracts  and  purchases,  806-812, 1144-1198. 

river  and  harbor  works,  79, 806-812. 

supervision  of,  1145. 
custodian  of  departmental  records,  67* 
departmental  regulations,  6. 


Secretary  of  War— Continued, 
deposits  in  navigable  waters,  regulations  for, 
826-830. 

in  New  York  Harbor,  835-847. 
dispatch  of  business,  16, 17, 49. 
drawbridges,  regulation  of,  817-819. 
duties,  62-72, 77-81. 
estimates,  48, 54, 55, 166-174,  712. 
flags,  collection  of,  68. 
forest  reservations,  1856-1858. 
fortifications,  792, 793. 
funds,  how  obtained,  480. 
Gettysburg  National  Park,  1790-1814. 
harbor  lines,  820-822. 
hospital  stewards,  674. 
leases,  revocable,  1215. 
liquors,  introduction  of,  into  Indian  country, 

1474, 1475. 

medals  of  honor,  1007. 
national  cemeteries,  1859-1874, 

Home  for  Disabled  Volunteer  Soldiers,  1737- 

1774. 
national  parks,  etc.,  1781-1858. 

use  of,  for  maneuvers,  1781-1782. 
New  York  Harbor,  deposits  in,  835-847. 
office,  62. 

Ordnance  and  Fortification  Board,  877-888. 
ordnance,  calibers  of,  889. 
payment  of  troops  by  check,  607. 
piers,  extensions  of,  829. 
post  quartermaster-sergeants,  538. 
property  returns,  1230-1233. 
proposals,  rules  for  preparation,  etc.,  1161. 
public  buildings  and  grounds,  714-720. 
quartermasters'  supplies,  69. 
regulations — 

Army,  429,  430. 

departmental,  6. 

not  subject  to  Army,  429,  note. 

power  to  make  and  enforce,  430,  note, 
requisitions  for  funds,  480. 
retirement  of  officers,  964-978. 
retiring  boards,  968-978. 
returns  office,  391, 1189-1192. 

of  militia,  81, 1249, 1250. 
returns  of  property,  1230-1233. 
river  and  harbor  works,  794-805, 823-834. 

approval  of,  822. 

contracts  and  purchases,  806-812. 
Shiloh  National  Military  Park,  1815-1824. 
stoppages,  636,  637. 
succession  to  office,  temporary,  7-14. 
supplies,  duties  respecting,  69, 536, 1145-1153. 
telegraph  lines,  71, 923-925. 
Washington  Aqueduct,  supervision  of,  732*745 
Yellowstone  National  Park,  1830-1855. 
Seditious  Conspiracy,  1591. 
Senate  (see  Congress) : 
confirmation  of  appointments,  4. 
penalty  envelopes,  60. 
rejected  appointments,  118. 
treaties,  4. 

Sentences  (96-101, 104-112  A.  W.) : 
approval,  etc.,  103, 104  A.  W. 
confirmation  of,  109-111. 

death,  96, 105  A.  "W. 


846 


INDEX. 


Sen  tence  s — Continued . 

dismissals,  106, 107  A.  W. 

limitation  on,  p.  704. 

mitigation,  112  A,  W. 

pardon,  112  A.  W. 
Sentinel : 

sleeping  on  post,  39  A.  W. 
Sergeant-majors  (Enlisted  Men) : 

artillery,  1075. 

cavalry,  1071. 

engineers,  701. 

infantry,  1078. 
Sergeants  (see  Enlisted  Men) : 

artillery,  1076. 

cavalry,  1072. 

engineers,  702. 

infantry,  1079. 

of  ordnance,  867. 

ordnance,  865,  866. 

signal,  919. 
Servants: 

enlisted  men  not  to  be  used  as,  992, 1068. 
Service  Schools : 

Artillery  School,  1142. 

Cavalry  and  Light  Artillery  School,  1144. 

Engineer  Depot,  1141. 

Infantry  and  Cavalry  School,  1143. 
Set-off: 

balances,  how  paid,  130,  note,  197. 

claims,  197. 

Settlement  of  Accounts.     (See  Accounts.) 
Shiloh    National    Military    Park    (see  National 
Parks) : 

acquisition  of  lands,  1816, 1822, 1823. 

battle  lines,  marking,  etc.,  1815, 1818-1820, 1822. 

cannon,  etc.,  1824. 

commissioners,  1818, 1819, 1822, 1823. 

condemnation  of  lands,  1816. 

cost  of  lands,  limitation,  1823. 

establishment,  1815, 1816. 

lands,  1815, 1816, 1817, 1820-1823. 

leases,  1817. 

maps,  1822. 

monuments,  etc.,  1817, 1819-1821, 1824. 

office,  1823. 

regulations,  1821. 

State  monuments,  1820. 

supervision,  1816, 1818-1821, 1823. 

tablets,  etc.,  1817, 1819-1821, 1824. 
Sick  Leaves  (see  Leaves  of  Absence),  950. 

pay,  621. 

Signal  Corps.     (See  Signal  Department.) 
Signal  Department  (see  Staff  Departments) : 

accountability,  921,  922. 

appointments,  916. 

appropriations,  917,  920. 

chief  signal  officer- 
appointed  from  corps,  455, 915. 
duties,  913, 917, 918, 922-924. 
rank,  913, 915. 

details  in  Weather  Bureau,  918. 

District  of  Columbia  militia,  1286. 

duties,  913, 917,  918-924. 

engineers,  signal  duties  of,  706. 

enlisted  men,  919, 921, 922. 
returns  by,  921. 


Signal  Department— Continued, 
estimates,  917, 920. 
examinations  for  promotion,  916. 
information,  collection  of,  913. 
injuries  to  telegraph  lines,  925. 
maps,  sales  of,  76. 
military  telegraphs,  923-925. 

construction  of,  924. 

injuries  to,  925. 

revenue  from,  923. 

supervision  of,  71, 923,  924. 
money  and  property,  division  of,  921.  note, 
organization,  914, 915. 
property,  returns  of,  921, 922. 
telegraph  lines,  control  of,  923-925. 

construction  of,  71. 
Weather  Bureau,  917,  918. 
Signaling.     (See  Signal  Department.) 
Silver  Coin: 

when  a  tender,  193. 

Sites  for  Buildings.    (See  Public  Lands.) 
Small  Arms : 

system  adopted,  906-911. 
Smithsonian  Institution : 
official  correspondence,  267. 
transportation  for,  551. 
Sleeping  on  Post,  39  A.  W. 
Soldiers  (see  Enlisted  Men) : 
deceased,  1069,  1070. 
commended  for  civil  employment,  85. 
orphans  of,  preference  to,  86, 93. 
preference  to,  in  ci%-il  service,  93,  94. 
widows  of,  preference  to,  86,  93. 
Soldiers'  Home: 
accounts,  adjustment  of,  1736. 
admission  to,  1720-1723. 
Articles  of  War,  application  of,  1728,  note, 
benefits,  who  are  entitled,  1720-1726. 
board  of  commissioners,  1714,  1717,  1718. 
borrowing  money  prohibited,  1732. 
buildings  and  grounds,  1734. 
clerical  force,  extra,  for  adjustment  of  accounts, 

1736. 

commissioners,  1714,  1717,  1718. 
contracts,  1733,  note, 
custodianship  of  funds,  1731, 1733. 
deduction  from  pay  of  enlisted  men,  642,  1730. 
deputy  governor,  1715, 1716. 
disbursements,  1731, 1733. 
discharge  of  inmates,  1724. 
discipline,  1728. 

duties  of  commissioners,  1717, 1718. 
duties  of  officers,  1715, 1716. 
eligibility  for  admission,  1720-1723. 
exclusion,  causes  of,  1723. 
expenditures,  regulation  of,  1731-1733. 
fines  and  forfeitures,  1729. 
funds  for  support  of,  1729, 1730. 
funds- 
borrowing,  1732. 

custodianship,  1733. 

deductions  from  pay  of  enlisted  men,  1730. 

deposits,  1731, 1733. 

derivation,  1729-1730. 

fines,  1729. 

investment,  1731, 1733. 


INDEX. 


847 


Soldiers'  Home— Continued, 
funds— Continued, 
stoppages,  1729. 
Treasurer  of  United  States  to  receive,  1731, 

1733. 

governor,  1715, 1716, 1732, 1734. 
inspection  by  Inspector-General,  1719. 
investment  of  funds,  1731. 
liquor,  restriction  on  sale  of,  1735. 
members,  who  may  become,  1720-1723. 
officers,  1715, 1716. 
out-door  relief,  1725. 
pensions  to  inmates,  1722, 1726. 
allotments,  1726. 
disposition  at  death,  1726. 
payments  to  inmates,  1726. 
surrender,  1722. 

permanent  appropriation  for,  180. 
purchase  of  grounds,  restriction,  1734. 
regulations  for,  to  be  prescribed  by  commission- 
ers, 1718. 

relief,  out-door,  1725. 
securities  not  to  be  pledged,  1732. 
support,  1729-1733. 
treasurer,  1715, 1716, 1729-1734. 
Treasurer  of  United  States,  custodian  of  funds, 

1731, 1733. 

Soliciting  Political  Contributions  Prohibited,  98. 
Solicitor-General  (see  Department  of  Justice) : 

duties,  270,  276. 
Sons  of  the  American  He  volution: 

badge  of,  1010. 

Southern  Pacific  Railway,  1561. 
South  Mountain : 

marking  lines,  etc.,  1829. 
Special  Agents : 
bonds  of,  227. 

Speeches,  Reproachful,  Provoking,  etc.,  25  A.  W. 
Spies,  p.  757. 

Staff  (see  Staf  Departments) : 
appointments  in,  how  made,  456. 
assignments  to  command,  449. 
bonds,  466-475,  515. 
examination,  515. 
'•     renewal,  515. 
command  in,  450,  451. 
department  commanders,  452,  note, 
engineers,  command  of,  449. 
examination  for  promotion,  458-462. 
general  officers,  441,  442. 
lieutenant-general,  441. 
major-general,  442. 
medical  officers,  command  of,  451. 
pay  officers,  command  of,  451. 
promotion,  457,  458. 
regimental,  1071, 1075, 1079. 
StafT  Departments: 

absence  of  chief,  duty  how  performed,  465. 
appointees  from  army,  examination,  459. 

civil  life,  460,  461. 
appointments,  456. 
boards  of  examination,  459-462. 
bonds,  466-475,  515. 
by  whom  given,  466. 
examination  of,  515. 
renewal,  515. 


Staff  Departments— Continued. 

examination  for  promotion,  459. 
failure  to  pass,  459. 
mental,  459-462. 
physical,  459. 
retirement  on  failure  to  pass,  459, 460. 

examining  boards,  459-462. 

mental  examinations,  458-462. 

physical  examination,  459. 

promotions,  how  made,  457, 458. 

retirement  on  failure  to  pass  physical  examina- 
tion, 459. 

rule  of  promotion,  457, 458. 

sureties,  466-475, 515. 

transfers  from  line,  463. 

transfers  to,  463. 

vacancies,  how  filled.  456. 

waiver  of  board  of  civil  appointees,  461. 
State  Homes.  (See  National  Home,  etc.) 
States: 

ammunition,  issues  to,  1290, 1291. 

arms  to,  distribution,  1279-1282, 1290, 1291. 

assent  of,  to  purchases  of  lands,  1206. 

insurrection  against,  1501, 1503. 

laws,  records,  etc.,  as  evidence,  1354, 1355. 

military  histories  to  be  furnished,  929. 

militia,  1238-1291. 

of  seaboard  States,  cannon  for,  1285. 
Statutes.     (See  Revised  Statutes  and  Statutes  at 

Large.) 
Statutes  at  Large  (see  Revised  Statutes) : 

accountability  for,  120. 

distribution,  426. 

evidence  of  laws,  428. 

preparation,  424, 427. 

preservation  of,  120. 

printing,  425. 
Statutes  of  Limitation : 

desertion,  1066, 1336, 1337, 103  A.  W. 
Stoppages  of  Pay  (see  Accounts) : 

clothing,  564. 

deficiencies,  636. 

final  settlements,  636. 

indebtedness  to  United  States,  636, 837. 

pay  of  officers,  636, 637. 

rempval  of,  636. 

Secretary  of  War,  power  of,  636, 637. 

subsistence,  658-660. 
Stores : 

accountability,  1230-1233. 

captured,  1228. 

damage  to,  1234, 1235. 

sales,  disposition  of  proceeds,  490-494, 1236. 
Straw : 

allowance,  559,  note. 

Striking  Superior  Officer,  etc.,  21  A.  W. 
Subsistence  Department  (see  Staff  Departments). 

acting  commissaries,  pay,  608. 

advertising,  1151, 1154-1157, 1165, 1166, 1175. 

appointments,  456. 

appropriations  available  for  purchases  of  stores 
for  sale,  594. 

assistant  commissaries-general,  575. 

civilian  employees,  579,  note. 

claims  for  subsistence  stores,  165. 


848 


INDEX. 


Subsistence  Department— Continued, 
clerical  force,  64. 
coffee,  extract  of,  585. 
commissaries,  captains,  575. 

majors,  575. 

Commissary-General  of  Subsistence- 
appointed  from  corps,  455. 

rank,  575. 

sergeants,  579. 

commutation,  rates  of,  595,  note, 
contracts,  1165, 1166, 1175. 
cooking,  596. 

deputy  commissaries-general,  575. 
duties,  575,  note ;  576. 
emergency  ration,  580,  note, 
examinations  for  promotion,  458-461. 
extra  issues,  580,  note. 
Indians,  issues  to,  1441. 
inspection  of  purchases,  1175. 
issues,  580-584, 586. 

emergency,  580,  note. 

extra,  580,  note. 

Indians,  1441. 

marines,  578. 

Navy,  578. 

marines,  supplies  to,  578. 
naval  force,  supplies  to,  578> 
officers,  575. 

not  to  engage  in  purchase  or  sale  of  com- 
ponents of  ration,  577. 
organization,  575. 
proceeds  of  sales,  592-594. 
procurement  of  supplies,  587,  591,  593,  594, 1151, 

1165, 1166, 1175. 
promotions,  457-461. 
purchases,  57C,  587, 591, 593, 594, 3165. 
ration,  580, 581. 

components  of,  580, 581. 
sales,  587, 588, 589, 590, 591, 592, 593. 

cash,  587-588. 

cost  price  to  be  charged,  588-591. 

credit,  587-590. 

stores  for,  587-591. 

to  enlisted  men,  587-591. 

to  officers, 587-589, 591-594. 
supplies,  1151, 1165, 1166, 1175. 

prescribed  by  Secretary  of  "War,  69.     . 
tobacco,  590. 
travel  ration,  580,  note. 
Salts: 

to  recover  money,  497. 

Summary  Courts  (see  Courts  Martial),  1329-1334. 
Supernumerary  Officers: 

discharge  of,  pay,  991. 
Supreme  Court: 

jurisdiction  in  habeas  corpus,  282. 
Sureties  (see  Bonds  and  Disbursing  Officers) : 
deficiency  of  principal,  notification  to,  476. 
examination  of  bonds,  515. 
inspection  of,  515. 
liability,  187. 
notice  to  principal,  187. 
priority  of,  186. 
release  of,  188,  477. 
renewal  of  bonds,  515. 
statutes,  failure  to  comply  with,  penalty,  475. 


Sureties  (see  Bonds  and  Surety  Companies) : 

examination  of  bonds  every  two  years,  515. 

release  of  sureties,  187,  188,  477. 

renewal  of  bonds  every  four  years,  515. 

reports,  471. 

Surety  Companies  (see  Bonds,  Sureties,  and  Dis- 
bursing Officers) : 

agents,  where  to  reside,  468. 

Attorney-General,  supervisory  powers,  467-471. 

authority  to  act,  467,  470. 

bonds,  giveu  by,  467-475. 

charter,  copy  in  Attorney-General's  office,  469. 

courts,  jurisdiction  over,  472. 

estopped  from  denying  power,  474. 
Surgeon-General  (see  Medical  Department) : 

appointed  from  corps,  455. 

artificial  limbs,  680-687. 

gratuitous  issues  of  clothing,  565. 

rank,  662. 

special  duties,  670, 671. 

trusses,  688-690. 

Surgeons  (see  Medical  Department),  662. 
Supplies  (see  Contracts  and  Purchases  and  Staff 
Departments) : 

contracts  for,  1151, 1160, 1179. 

marking,  1178. 

medical,  694. 

ordnance,  872. 

Pacific  Coast,  productions  of,  1158. 

procurement  of,  539-543, 1145-1198. 

purchases  regulated  by  Secretary  of  "War,  69. 
1145. 

quartermasters',  539-543. 

safe  keeping,  69. 

schools,  549, 1173. 

subsistence,  576,  587,  591. 
Surrender: 

compelling,  43  A.  W. 
Suspension  of  Intercourse : 

captures,  1522-1524. 

clearance  of  vessels — 
bond,  1534. 
refusal  of,  1533. 

condemned  vessels,  lien  on,  1535. 

confiscation  of  property,  aiding  in  insurrection 
1521. 

duties,  collection  of,  1527, 1530. 

extent  of  suspension,  1516, 1517. 

frauds,  1520. 

goods  to  aid  insurrection,  1525. 

investigations,  1520. 

licenses  to  trade,  1517. 

loyal  States,  1515. 

officers  to  enforce  rules,  1518. 

ports  of  entry,  1527-1530. 

President  may  declare,  1514. 

property  captured,  disposition  of,  1522-1524. 

revenue  cutters,  1531. 

trade  in  captured  property  forbidden,  1526. 

trading  without  licenses,  1519. 

vessels,  forfeiture  of,  1532. 
Suspension  of  Pay,  101  A.  W. 
Tactical  Organizations,  452. 
Teachers: 

school,  555,  558. 

pay,  555, 558. 


INDEX. 


849 


Telegraphs  (see  Signal  Department) : 

charges  for  services,  923. 

construction,  913,  923-925. 

control,  913, 923. 

delaying  communications,  penalty,  925. 

department  commanders  to  supervise  construc- 
tion, 924. 

expenses  of  operation,  923. 

interference  with,  or  injury  to,  penalty,  925. 

maintenance,  923. 

material,  injury  to,  penalty,  925. 

obstructions  to,  925. 

obstructions  to  operation,  925. 

operation,  913, 924. 

receipts  to  be  covered  into  Treasury  923. 

repairs,  913, 923. 

supervision,  913, 924. 

telephones,  813. 

Telephones.     (See  Telegraphs.) 
Term  of  Enlistment,  1018. 
Tender : 

debts  due  by,  or  to,  the  United  States,  194. 

gold  coin,  193. 

national-bank  notes,  194. 

silver  coin,  193. 

Treasury  notes,  195. 
Territorial  Commands,  452,  note. 
Territorial  Departments,  452,  note. 
Territorial  Divisions,  452,  note. 
Territorial  Homes  for  Disabled  Volunteers  (see 

National  Home),  1763-1765. 
Territorial  Militia,  1289. 
Territorial  Office,  986. 
Territories : 

arms  and  ammunition,  issues  to,  1290, 1291. 

duties  of  Secretary  of  Interior,  374. 

militia,  1289. 
Testing  Machine : 

American    Society    of    Civil    Engineers,   pro- 
gramme of,  895. 

direction,  892, 893. 

expense  of  tests,  894, 895. 

management,  892-895. 

payments  for  tests,  894, 895. 

programme  of  tests,  895. 

tests  of  materials.  894,  895. 
Tests  of  Ordnance  (877-880,  881,  882, 885,  886-890) : 

rifled  cannon,  890. 

small  arms,  909-911. 
Texas: 

Indians  not  to  be  permitted  to  visit,  1487. 
Thanksgiving  Day  (see  Holidays) : 

how  designated,  35. 
Torch  Lake,  Mich. : 

exemption  from  operation  of  act  of  September 

19, 1890,  825. 
Trade : 

contracts  in  restraint  of,  1557. 
Traders.    (See  Post  Traders.) 
Transcripts  from  Books,  etc.,  of  Treasury  (1349, 
1350) : 

military  records  of  States  929. 
Transfers: 

of  enlisted  men,  1030. 

of  funds  in  depositories,  250, 251, 486. 

of  officers,  697,  939,  952. 

to  staff,  463, 464. 

1919 54 


Transportation  (see  Quartermaster's  Department) : 

artificial  limbs,  686,  687. 

bond-aided  railroads,  552. 

contracts  for,  546,  547. 

controlled  by  Secretary  of  "War,  70,  544. 

exchanges,  1174. 

land-grant  railroads,  552. 

officers,  545. 

procurement  of,  544-552. 

remains  of  deceased  officers,  993,  note. 

soldiers,  1070,  note. 
Travel  Allowances  (see  Pay  Department) : 

discharged  officers,  635. 
soldiers,  653. 

expert  accountant,  634. 

mileage,  630-635. 

militia  in  active  service,  1266. 

officers,  630-635. 

orders  requiring,  contents,  630, 632. 

paid  by  Pay  Department,  633. 

paymasters'  clerks,  634. 
Travel  Ration,  580,  note. 
Treason : 

criminal  correspondence,  1590. 

definition,  1586.  _ 

enlisting  to  serve  against  United  States,  1593. 

insurrection,  inciting  or  engaging  in,  1589. 

misprision  of,  1588. 

punishment,  1587. 

recruiting    soldiers    to    serve    against    United 
States,  1592. 

seditious  conspiracy,  1591. 
Treasurer  of  the  United  States  : 

cover  in  of  funds,  220. 

Debris  Commission  of  California,  funds  of,  791. 

deposits,  228. 

duties,  217. 

failure  to  keep  moneys,  500. 

funds,  transfers  of,  250. 

lost  checks,  514. 

office,  216. 

reports,  221. 

salary,  216. 
Treasury  Department: 

accounting,  130-162. 

accounting  officers,  134-165. 

accounts  and  accounting,  130-165. 

Appropriation  Division,  147. 

appropriations,  176-182. 

Assistant  Comptroller,  134. 

auditors,  138-165. 

Bookkeeping  Division,  147. 

certification  of  records,  150. 

claims,  130, 196-215. 
quartermaster  stores,  164, 165. 
subsistence,  etc.,  165. 

Comptroller,  134-137. 

cover  in  of  funds,  220. 

debts  due  to  or  by  the  United  States,  184-192. 

deposits,  228. 

distress  warrants,  235-242. 

Estimate  Division,  147. 

estimates,  48-49, 166-174. 

fiscal  year,  131. 

funds  subject  to  draft  of  Treasurer,  251. 

lost  checks,  514. 


850 


INDEX. 


Treasury  Department— Continued. 

notes  of,  as  tender,  195. 

records,  certification  of,  150. 
preservation,  144. 

requisitions  upon,  8, 146. 

Solicitor,  records  of  office  as  evidence,  1348. 

transcripts  from  books  as  evidence,  1349. 

transfers  of  funds,  250. 

Treasurer,  216-222. 

Warrant  Division,  147. 

warrants,  146. 
Treasury  Notes  (see  Tender) : 

tender,  195. 
Treaties: 

convention  with  Mexico  p.  776. 

Geneva  convention,  p.  759. 
Trespassers: 

removal  of,  from  public  lands,  1555. 
Tribunals,  Military.     (See  Courts- Martial.) 
Troops  (see  Unlisted  Men) : 

allowance  of  quarters,  571,  note. 

brigades,  452. 

command,  443-451. 

divisions,  452. 

elections,  interference  with,  prohibited,  1551. 
protection  of,  1551-1552. 

employment  of,  1501-1585. 

engineer  battalion,  701-706. 

extradition,  support  of,  1574-1576. 

guano  islands,  1577-1585. 

Indian  reservations,  removal  of  intruders,  1508- 
1513. 

insurrection,  1501-1504. 

mails,  prevention  of  obstructions  to,  1556. 

militia,  1505-1507. 

national  military  parks  for  maneuvers  of,  1781, 
1782. 

neutrality,  enforcement  of,  1563-1573. 

obstructing  mails,  prevention  of,  1556. 

Pacific  railways,  1558-1561. 

pay,  638-660. 

payments,  606, 607. 
check,  607. 
once  in  two  months,  606. 

posse  comitatus  act,  1562. 

public  health,  1553. 

rations,  580-586. 

restrictions  on  use  of,  1562. 

returns,  519,  note. 

subject  to  Articles  of  War,  p.  704 ;  2,  63  A.  W. 

tactical  organizations,  452. 

trade,  contracts  in  restraint  of,  1557. 

trespassers,  removal  of. 
Indian  reservations,  1508-1513. 
public  lands,  1554-1555. 

use  of,  1562,  note. 

restrictions  on,  1562. 
Trumpeters.    (See  Unlisted  Men.) 
Trusses  (see  Medical  Department) : 

allowance,  688. 

applications,  689. 

distribution,  688. 

examinations,  689. 

purchase,  690. 

Tucker  Act  (see  Gourt  of  Claims),  339-353. 
Twice  in  Jeopardy,  102  A.  W. 


Uniform: 

brevet  rank,  not  to  be  worn,  1002. 
corps  badges,  1009. 
decorations,  1005, 1006. 
prescribed  by  President,  562. 
Regular  Army  and  Navy  Union,  badge  of,  lull, 
sale,  loaning,  etc.,  forbidden,  574. 
society  badges,  1010. 
Sons  of  Revolution,  badge  of,  1010. 
volunteer  rank,  when  worn,  1004. 
Union  Pacific  Railroad,  1559. 
United  States  (see  Court  of  Claims) : 
claims  against,  130. 
laws  of.     (See  Revised  Statutes.) 
testing  machine,  892-895. 
United  States  Army  (436-442) : 

composition,  436. 
Unlimited  Retired  List,  967. 
Veterinary  Surgeons,  1071. 
Victuals,  etc. : 
commanders  not  to  be  interested  in  sale  of,  18 

A.W. 
Violence    to    Persons    Bringing    Provisions,    56 

A.W. 

Voluntary  Services : 
prohibition  of,  1150. 
when  accepted,  1150. 
Volunteer  Rank  of  Officers  to  Appear  in  Army 

Register,  434. 
Volunteers : 

claims  for  drilling,  organizing,  etc.,  201. 
pay  and  allowances,  661. 

uniform  of  highest  rank  in,  when  worn,  1004. 
Vouchers  (see  Accounts) : 

payments  less  than  face  of,  penalty,  498. 
Wagoners  (see  Unlisted  Men) : 
artillery,  1076. 
cavalry,  1072. 
infantry,  1079. 

Waiting  Orders  (see  Leaves  of  Absence),  950. 
War : 
amelioration  of  the  condition  of  the  wounded 

(see  Geneva  Convention),  pp.  759-775. 
definition,  p.  783. 
deserters,  p. 787. 
enemies,  p.  783. 
flags  of  truce,  pp.  793, 794. 
martial  law,  pp.  780-782. 
methods  of,  pp.  787-793. 
persons,  protection  of,  pp.  786-787. 
prisoners  of,  pp.  786-790. 
property,  pp.  784-786. 
siege  operations,  pp.  782,  783. 
Washington  Aqueduct  (see  Engineer  Department 

and  Chief  Engineer) : 
appropriations,  734. 
Chief  of  Engineers- 
appeals  from  decisions,  743. 
compensation,  limitation  on,  739. 
decisions,  743. 
duties,  732-737, 739-743. 

obeys  orders  and  regulations  of  President,  733. 
opening  of  mains,  supervision  of,  735. 
plans,  maps,  etc.,  741. 
powers,  742. 


INDEX. 


851 


Washington  Aqueduct— Continued. 
-Chief  of  Engineers— Continued. 

records,  741. 

superintendence,  732. 
District  of  Columbia  Commissioners,  731. 
expenditures,  734. 

supervision  of,  by  Secretary  of  War,  733,  734. 
injuries  to  pipes,  fixtures,  etc.,  penalty,  736. 
lands,  control  of,  746. 
mains,  opening  of,  735. 
making  water  impure,  penalty,  737. 
offices,  etc.,  740. 
pipes,  opening  or  tapping,  735. 
plans,  records,  etc.,  741. 
public  buildings,  flow  of  water,  744. 

pipes  and  mains  for,  738. 
records,  741. 
reports,  718. 

superintendence,  732,  742,  743. 
Washington's  Birthday.     (See  Holidays.) 
War  Department  (see  Executive  Departments  and 

Secretary  of  War) : 
accounts,  where  audited,  139. 
appointments  in,  to  be  apportioned,  88. 
appropriations,  77, 176-183. 

how  drawn,  175, 480. 
Assistant  Secretary.  63. 
Attorney-General,  opinions  of,  273,  274. 
building,  distribution  of  space,  82. 
•chief  clerk,  8, 15-18, 34,  65. 

duties,  8, 15, 16, 34,  65. 

office,  65. 

salary, 64. 
civil- service  law,  83-103. 

regulations,  88,  note ;  p.  45,  note, 
claims,  38-44. 
clerical  force,  20-24, 64. 

civil-service  rules,  83-103 

classification,  20-24. 

employment  of  services,  27-31, 83-103. 

hours  of  labor,  19. 

leaves  of  absence,  19. 

salary, 25. 

sick  leaves,  19. 

contributions  forbidden,  88, 97-101. 
disbursing  clerk,  18. 

bond,  18. 

duties,  18. 

salary, 64. 

disposition  of  useless  papers,  82,  note, 
employment  of  services,  83-103. 
establishment,  62. 
estimates,  48,  49,  54,  55, 166-174. 
history  of  Department,  62,  note, 
naval  oificers,  detail  in,  371. 
oaths  of  office,  33-34, 104-106. 
probation  of  employees,  88. 
regulations,  6. 
reports,  48-51,  77-81. 


War  Department— Continued. 

requisitions  for  funds,  175,  480. 

Secretary  of  War,  62, 63,  66-73, 75-82. 
Warrants : 

distress,  235-248. 

Division  of,  147. 

signed  by  Secretary  of  Treasury,  146. 

War  Department,  how  drawn,  175,  480. 
Waste  of  Property,  etc.,  55  A.  W. 
Wasting  Ammunition,  16  A.  W. 
Watchword : 

disclosing,  etc.,  44  A.  W. 
Waters.     (See  Navigable   Waters  of  the    United 

States.) 
Watertown  Arsenal : 

testing  machine,  892-895. 
Wine: 

sale  of,  at  posts,  1225. 

Witnesses  (see  Evidence  and  Courts-Martial),  1345- 
1356: 

accused  as,  1346. 

attachment,  1311,  note. 

attendance,  1311,  note. 

before  military  courts,  1345. 1346. 

claim  cases,  38-41. 
fees,  39. 

penalty  for  refusing  to  appear,  40. 
subpoanas  in,  38. 

competency,  1345,  note. 

compulsory  powers,  1311,  note. 

defense,  summons  of,  1311,  note. 

fees,  1345,  note. 

service  of  summons,  1311,  note. 

subpoenas,  1311,  note. 

summons,  1311,  note. 
Women,  Employment  of  (see  Employes*)  -. 

compensation,  26. 

copyists,  26. 

duties,  24. 

salary,  22,  25. 

Working  Parties.     (See  Extra  Duty.) 
Workmen  at  Armories,  etc.,  896-898,  902,  903. 
Wrongs  (see  Redress  of  Wrongs)  -. 

to  officers,  redress  of,  29  A.  W. 

to  soldiers,  redress  of,  30  A.  W. 
Yellowstone  National  Park: 

animals,  etc.,  protection  of,  1834-1844. 

birds,  etc.,  protection  of,  1834-1844. 

bridges,  roads,  etc.,  1849-1855. 

commissioner,  1854-1855. 

control,  1831. 

employees,  1845, 1854, 1855. 

establishment,  1830. 

jurisdiction,  1832, 1833, 1834-1844. 

leases,  1846, 1847. 

limits,  1830, 1833. 

roads,  repairs,  etc.,  1849-1855. 

superintendent,  1845. 

supervision,  1831, 1848. 

troops  for  police  purdoses,  1848. 


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